or any tort accompanying it, that may enhance the damages above the real value of the thing; and there is no rule whereby to estimate the additioual value; it shall not be brought in. ibid. Payment of money into court, on 4,5 Aun. c. 16. s. 13.—

1st. This act ought to have a most
liberal construction: and the
courts of law and equity ought
to exercise their own authority to
extend the spirit and reason of it.
It meant that in cases of penal-
ties by way of security, the clear
final justice of the case should
be attained in the courts of law.
iii. 1373, 1374.
2dly. The just intent of a bond is,

to secure principal, interest aud
costs by a penalty; and suffer
the debtor, at any time, to save
the forfeiture, by performing the
intent. ibid.

3dly, Bonds conditioned for pay-
ment of money by instalments
are within this act. ibid.
4thly. But if a bond is condition-

ed for payment of a gross sum
at a certain fixed day; and by a
subsequent agreement, the debt-
or is allowed to pay it by instal-
ments, provided that he pay it
punctually; otherwise, the
agreement and defeasance to be
void-if the debtor does not
pay it punctually, they are void;
and the gross sum is due to the
obligee. ii. 1374,

And unless the debtor pays the whole money, he can not be relieved from the penalty. iii.

1374. 5thly. The acceptance of interest up beyond the time of the unpaid instalment is no waver: for, the obligee was intitled to receive it, as part of the original debt secured by the bond. iii. 1375. A mandainus" to go to election, upon a judgment of ouster"1st. Can not be moved for, till judgment be actually signed. 1386.

66

A

1

2dly. The prosecutor, who only stayed till his judgment was signed, shall not lose his motion which he was quite prepared to make, by another person's employing a counsel who had preaudience before the prosecutor's counsel, in order to get priority. ibid. and 1387.

plaintiff ought to give the defendant an account of the particulars of his demand. iii. 1390. A defendant was arrested within two days of the end of Easter Term, by virtue of a writ taken out four days before the end of the same Easter Term; and remained in custody of the sheriff till after the end of Trinity Term following, without being charged with any declaration.

1st. He was discharged out of

the custody of the sheriff, on filing common bail. iii. 1450. 2dly. There is no difference (per Lord Mansfield) between his being in custody of the sheriff, and his being in custody of the marshal. ibid. But it does not follow that "because a declaration must be filed be"fore the end of a second term," that therefore notice to plead must be given within the same limits : for notice to plead may be good, though only given a little before the essoin-day of the following term. iii. 1452.

66

A month's time to plead-means a lunar month. iii. 1455.~And so in all legal proceedings, a month means four weeks: but in quare impedit, six months means half a year. ibid. Temporal law understands them to be lunar ecclesiastical law, calendar. ibid. and 1456.

Concerning putting-off trials. iii. 1514 to 1516. See Trial. The court will never grant an information, upon the application of the attorney general, in cases prosecuted by the crown; because he has that right in himself, and may

summon the parties to shew cause, if he thinks proper. iii. 15(5. V. infia acc.

Proceedings have been stayed, where it appears upon the face of the declaration, that the cause of action

66

is infra dignitatem curiæ" (as for 20 shillings only) but this ought not to be done upon the mere affidavit of the defendant; for, the court can not try the quantum, upon affidavit. iii. 1592. An objection to an omission in the plea-roll comes too late, after the defendant has accepted the issue and paid for it. iii. 1682, 1683 A scire facias against bail must lie four days in the office, before the return a scire facias in error needs not do so. iii. 1723. Payment of money into court-The

court of C. B. have lately altered their practice, and made it conformable to the practice of B. R. (viz. to strike so much out of the declaration) iii. 1773. V. supra, sub 1120. Personal appearance of a defendant convicted of a misdemeanour ought not to be dispensed with, (upon his clerk in court's undertaking for the fine,) unless it be clear that the punishment will "not be corporal, but only pecu"niary" and not in every case even of that kind. iii. 1787. A defendant in custody must be charged with a declaration before the end of the second term after his imprisonment: else, he may be discharged, on filing common bail, &c. iii. 1787, 1788. And the time runs from notice of his being in custody. ibid.

Surrender in discharge of bail equally intitles to being so supersedable, as if the person had been taken, and had remained two terms in custody after being taken, and the plaintiff had neglected to declare. ibid.

A real fair demurrer is within the

terms of a judge's order for pleading an issuable plea: a sham demurrer is only an evasion of it. iii. 1788, 1789.

On a writ of error-One alone can not bring a wit of error, on a judg ment against several. iii. 1791, 1792.

But one only of two executors who have recovered, may, upon a writ of error to reverse their judgment, have a scire facias quare executionem non, without shewing "that "the other executor is dead." ibid.

On a scire facias, no damages can be recovered. ibid.

The presence of an attorney for the defendant, upon confessing judg ment, is necessary where the defendant is in custody at that same plaintiff's suit but the rule does not extend to warrants of attorney to confess judgments in other actions. iii. 1793.

Issue tendered by the defendant; and the plaintiff joins issue-"Et

66

predict. the defendant similiter." instead of "et predict. the plain"tiff similiter." This was objected, in arrest of judgment: but the objection was over-ruled, and the judgment established. iii. 1793,

1794.

immediate notwithstanding an old disused rule of Michaelmas 1654; and notwithstanding the plaintiff's having already declared against the defendant in custody of the sheriff, pursuant to 4, 5 W. & M. c. 21: which statute takes away the reason of this old rule, but not the plaintiff's right to remove him. iii. 1875, 1876. About quashing indictments, on motion. iii. 1841. See Indictment. After sentence pronounced, the

court are not bound to let in a motion in arrest of judgment. iii. 1901 to 1903.

Bail upon appearing to au outlawry. iii. 1920. See Bail, Outlawry. The sheriffs of London and Middlesex could not be compelled to return their writs and bring in the body, till after six days: they shall, for the future, be obliged to do it within four days.

Regula generalis, made in Trin. 6 Geo. 3. in. 1921.

A writ of possession upon a judgment in ejectment, tested before the death of the lessor of the plain. tiff, but not actually sued out till after his death, is regular: it has relation to the teste. iv. 1971. Costs upon a remanet. iv. 1986 to 1990. See Remanet. Attorney for plaintiff neglecting to charge the defendant being in custody, with a declaration, within two terms, is liable to the plaintiff in an action, but not in a summary way. iv. 2060 to 2063. See Attorney.

The court will not grant an information for a misdemeanor, upon the motion of the attor ney-general on behalf of the crown; because he may do it himself, if it appears to him to be proper. iv. 2090. V. supra (under pa. 1565,)

Security for answering costs-not required of a foreigner plaintiff, nor of a plaintiff gone abroad, having left no effects in England. iv.2105. A defendant under attachinent must answer interrogatories: he cannot

come in and confess the contempt, before answering interrogatories. iv. 2106.

Bail is excepted to, and therefore does not justify; but omits getting his name struck out of the bailpiece: he may, when attached, apply for an exoneretur, to be entered nunc pro tunc. iv. 2107. Indictments for nuisances must be demurred to: the court does not quash them on motion. iv. 2116. See Buil.

About holding to special bail-The King's Bench and Common Pleas differ, where an action of debt is brought upon a judgment for upwards of 101. but the original cause of action was under 101. The former discharge on common bail: the latter require special. iv. 2118. Rule to shew cause why costs should not be paid the prosecutor out-of the money levied on a forfeited recognizance. The king is only a trustee for the party. iv. 2119. Concerning costs on removing an indictment by certiorari at the instance of the defendant: where the defendant has been convicted and fined, and the prosecutor has received a third of the fine. iv. 2126, See Costs. Concerning allowing interest, upon affirmance of judgments. iv. 2128. See Interest.

On a rescue returned. iv. 2129. See Attachment, Rescue.

Motions in arrest of judgment must be made within the first four days of the term but Sunday is not to, be esteemed one of the four. iv. 2130.

:

Of surrendering principal, by bailThey have till the quarto die post (sedente curia,) where it is by original. iv.2134. See Bail. Warrant for a tales, on a trial in a county palatine-is, to be from the king's attorney-general. iv. 2173, 2174.

Concerning delivering, declarations by the by.iv.2181.See Declaration. Rules of practice may be dispensed with, or relaxed by the court, up

on sufficient reasons; being only made in advancement of justice. iv. 2271. Variance between declaration and process. iv. 2417. See Variance. A non pros: against the plaintiff, for not declaring within time, in an action of trespass against several, ought to be joint; not a distinct one for each defendant. iv. 2418.

A'scire facias in error needs not lie

four days in the office; as a scire facias against bail must. iv. 2439. A plaintiff obtained judgment, The defendant brought a writ of error, and transcribed: and it remains 'undetermined. The plaintiff brought an action of debt upon his judgment, and got judgment by default: and took out execution. The court stayed his proceedings, till the writ of error should be determined. iv. 2454, 2455.

On the last day of a term, a motion "to answer the matters of an affi"davit" can not be made. iv. 2502. V. supra (under 651.) After bail had justified, the plaintiff's attorney (without disclosing this) obtained a side-bar rule "to dis

a

If

costs may be moved for, on the last day of a term. v. 2686. proceedings against bail are stayed, upon their undertaking to pay the debt and costs, within 4 days after the affirmance of a judgment, it means the final affirmance of it." See Bail, Error.

Claim of conusance. See Conusance.

PREBEND; PREBENDARY. Profits during vacancy-upon a question about the right to them, an 'action at law, or a bill in equity, is the proper method: not a mandamus to the visitor. i. 567. See Mandamus.

PRESCRIPTION-See Declaration. For a right of burial in a chancel,

claimed as belonging to his mes

suage: it was stated that he had "such a right; and that 2s. was "due to the parish, for every per66 son buried in the chancel of that "church."

1st. This payment is not a con-
dition precedent, or parcel of
the prescription: i. 443, 444.
2d. "But either a customary pay-
ment, or, at least, a collateral
prescription. ibid,

PRESENTMENT. See Court-Leet. By a justice of peace upon view, pursuant to 5 Eliz. c. 13. s. 9. is traversable generally. iii. 1530 to 1532. See Highway.

Payment of money into court is an acknowledgment of being liable to the action. v. 2640.

The form and method of proceeding upon an appeal of death. v. 2643 to 2657.

A judgment signed by an attorney's clerk who used the name of a regülar attorney, but without his knowledge or consent- was set aside. v. 2660.

An attachment for non-payment of

Of bread wanting weight-(grafted on 3 G. 3. c. 11. s. 6. and 14.) iii. 1859 to 1865. See Court-Leet.

PRINTING.

Acts of parliament, and abridgments of acts of parliament1. The king's printer is intitled, during the term granted by letters pateat of 13th of October, 12 Ann. (for thirty years from 10th Jan. 1789) to this right, exclusive of all other persons not authorized by former grants. ii. 664.

2. But the university of Cambridge are by letters patent of 26 H. 8. and 3 Car. 1. intrusted with a concurrent authority to print them within the said university, the terms mentioned in the said letters patent. ibid. When and where, and by whom, first invented: and when, how, and by whom, first introduced into England. iv. 2410 to 2416.

upon

PRIORITY OF SUIT What gives it: and how to be pleaded. iii. 1423 to 1434. See Pleading.

PRISON, PRISONERS— In execution, applying to be brought up. ii. 747, 748. See Statutes. Of war, taken on board of an enemy's ship, ought to apply to the crown, if his case merits relief: but this court will not take upon themselves to set him at liberty, on a habeas corpus. ii. 765, 766. See Habeas Corpus.

Insolvent debtors. ii. 747, 748, and 799. and 901. See Statutes (under those pages.)

The high-bar-money, or box-money, does not belong to them. ii. 867, 868. See High-Bar-Money. "The Marshalsea-prison in the "borough of Southwark"-is a description (in a will at least,) of the Palace-court prison, not of the King's Bench Prison. ii. 1037 to 1039.

The method of charging them in custody; and the whole practice of it, (both ancient and modern, and both in terun-time and in vacation.) ii. 1049 to 1053. See Practice. In execution upon qui tam actions

brought against them, are not ineluded in the 13th clause of 32 G.2. c. 28. " for discharge of debtors "in execution of sums not ex◄ "ceeding 1001. upon exhibiting "their petition and assiging "over all their estate and effects;" either as to the crown's moiety, or even the informer's moiety. iii. 1322. Insolvent

debtors-when to be brought up a second time. iii. 1393. See Statutes (particularly 2 G. 2. c. 22. s. 9. and 32 G. 2, c. 28. s. 13.)

By 2 G. 3. c. 2. so much of 1 G. 3. c. 17. as relates to creditors compelling prisoners charged in execution, to deliver up their estates, and to such prisoners being thereupon discharged, is repeated from and after 19th November 1761, to all intents and purposes whatsoever. iii. 1457.

Before that day, an application had been made to the quarter-sessions under the then unrepealed law, and the jurisdiction fully attached in them; and every requisite complied with yet they adjourned the matter till a day subsequent to that day, when the repeal was to take place. They can not proceed, after that day: no jurisdiction remained in them. ibid. A person not in actual custody of the gaoler, but only of the officer in a lock-up house was holden not intitled to be discharged under 1 G. 3. c. 17. iii. 1809.

If a committitur is not entered on re

cord within two terms, the prisoner is intitled to be discharged. iii. 1841. See Practice. Not charged with a declaration within two terms, are intitled to be discharged; and the plaintiff's attor

liable to an action for his negney lects. iv. 2060 to 2063. See Attorney, Practice, Statutes (4 & 5 W. & M. c. 21.)

Brought up to the sessions to be discharged on 5 G. 3. c. 41. The sessions declare him irrelievable because charged with an outlawry: