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Semb. An indictment may

proved that the defendant had admitted there was a balance due to the plaintiff, but was unable to state with precision the amount. The memorandum and hand-writing of the party was then proposed to be proved, when it was objected to as inadmissible, being neither signed nor stamped; and further, that as that memorandum was unavailable, there was no written contract, although it was the sale of standing trees which conveyed an interest in the reality. The judge presiding at the trial adopted this opinion, and the plaintiff was nonsuited with leave to move to set it aside.

A rule nisi was accordingly obtained that the nonsuit might be set aside, and a verdict entered for the plaintiff for 45l.; and Knowles v. Michel, 13 East, 249. (ante, p. 157.) was cited, where it had been determined, that an admission by the defendant that he had bought standing trees of the plaintiff for a certain sum of money, and that he had cut them down and carried them away, would support a count upon an account stated, though not for goods sold; it was, therefore, submitted that no written evidence of the contract was necessary.

Per Cur. If it had been proved that a certain sum was agreed to be paid by the defendant as the balance due to the plaintiff, the case of Knowles v. Michel would be expressly in point; but there the defendant admitted a precise sum to be due; that case therefore does not meet the present, in which the difficulty is to ascertain what is due, no promise having been proved by the defendant to pay a definitive and certain sum, but merely the balance due from him to the plaintiff.

See 6 T. R. 452; 12 East, 237 ; 2 B. & A. 473; 2 Stark. 277.

VI. WHEN AN INDICTABLE OFFENCE, TO DESTROY. THE QUEEN V. CRISP. T. T. 1703. K. B. 6 Mod. 175. On an indictment for a misdemeanor, it appeared that an account had been stated between defendant and A. by which defendant apbe supported for peared to be indebted to the latter in a certain sum; the defendant tearing an acsigned the account, and afterwards obtained possession of it by false been settled and pretences, and vi et armis tore it contra pacem, &c. It was moved signed.* that the indictment should be quashed:

count after it has

1st. Because it was a private offence not indictable.

2d. Because it did not show in whom the property in the paper was vested.

Per Cur. We must refuse the motion, for it was a trespass ab initio. The property is his who was entitled to the debt on the account; and directed the defendant to try it, or demur at his peril. See Comb. 16; 12 Mod. 413; 4 Com. Dig. Indictment, D; Stra. 595; 1 Ld. Raym. 316.

* It is now, however, a clearly established principle of law, that an indictment will not lie for a bare trespass; Rex v. Johnson, 1 Wils. 325; Sayer, 27; for the words vi et armis alone are not sufficient; Rex v. Storr, 3 Burr. 1698; Rex v. Atkins, 3 Burr. 1706. There must be such an actual force as implies a breach of the peace to make a trespass an indictable offence; Rex v. Blake, 3 Burr. 1731; and this degree of actual force must appear on the face of the indictment; Dougl. 153. See also

1 Russel, 70; 4 M. & S. 214; 1 Ld. Raym. 366; 3 Salk. 189.

Ac etiam, in, Process.*-See also tit. Affidavit of Debt; Bail; Declaration.

1.

THOMPSON V. COLLINS. Cited by Holt, C. J. in GARIBALDO V. COG-
NONI. M. T. 1703. K. B. 6 Mod. 266.

Semb. The sum

In an indebitatus assumpsit the declaration and recovery was for stated in the ac more than the ac etiam in the writ, and though it was offered to etiam should make it correspond with the ac etiam, by entering a remittitur on correspond with the record for the difference, yet it was denied on debate.

2.

the amount sought to be recovered.

TURING V. JONES. M. T. 1793. K. B. 5 T. R. 402. The defendant was in custody on a bailable latitat. An application But it is now was made to the Court for his discharge on the ground that the de- settled, that a claration and ac etiam varied in the amount, notwithstanding the variance in that action was in debt, and instituted for the recovery of a sum certain. respect is no irSed per Cur. There is no incongruity in these proceedings; the will not afford regularity, and process does not appear on the record; and therefore the assumed even a ground analogy between actions by original and by bill fails. No case can for discharging be cited where an objection as to the sum has been allowed to prevail. defendant on See post, tit. Declaration; 2 B. & P. 358; 6 T. R. 158; 2 Saund. common bail.

52, a.

3.

Cox v. MUNDY. E. T. 1730. K. B. 1 Bl. Rep. 462.

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A motion was made to stay proceedings on a bill of Middlesex, Where the prowhich was in debt only, and not in trespass, with an ac etiam in debt cess was to for a penalty incurred by defendant having foreign lace in his house. answer the plaintiff in a Lord Mansfield, C. J. refused a rule to show cause unless a precedent plea of debt" could be produced; but on its being moved again when Denison, J. (instead of treswas present, the bill was ordered to be amended by inserting the pass, with an ac words "in a plea of trespass."

Anterior to the stat. 13 Char. 2. stat. 2. s. 2. a defendant might have been arrested and holden to bail for any sum of money upon a common bill of Middlesex, or latitat, &c. not expressing the particular cause of action. To remedy this mischief it was enacted, that no person arrested by any sheriff by force or colour of any bailable writ, bill, or process, issuing out of the King's Bench, wherein the certainty and true cause of action is not expressed particularly, shall be compelled to give security for his appearance in any penalty, or sum of money, exceeding the sum of 40%. This statute, says Mr. Justice Blackstone, (without any such intention in the makers,) had like to have ousted the King's Bench of all its jurisdiction over civil injuries without force, for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and holden to bail thereupon for breaches of civil contracts. But notwithstanding this statute, the defendant might still be arrested and holden to bail upon a common bill of Middlesex, or latitat, &c. for any sum not exceeding 401.; and where it was for a larger sum, a method was devised to preserve the jurisdiction of the Court, and at the same time to authorize an arrest, by inserting in the process an ac etiam, or special clause, beginning with these words; shortly describing the true cause of action in addition to the general complaint of trespass. And a rule of court was made upon this statute, that no attorney should make any precept or writ, with a clause of ac etiam, &c. against any heir, executor, or administrator, nor in any case where, by the course of the court, special bail was not required. See further as to the origin of this statute and its effect, Petersdorff on Bail, 9 to 16.

etiam in debt) the Court allowed it to be amended;

Or if the mis

take be not material, the court will overlook it altogether, as where the ac etiam was to answer the

plaintiff " in a

plea of trover" instead of saying "a plea of tres

pass on the case

for converting the goods of the plaintiff to his use."

Or where the process was to answer the plaintiff in a

plea of debt with an ac etiam in

case.

Where the

CALLAGHAN, ONE, &c. v. Harris. H. T. 1769. C. P. 2 Wils. 392. The plaintiff had sued out an attachment of privilege to answer the plaintiff in a plea of trespass, and also to a certain plea of trover, for converting the goods and chattels of the plaintiff for 1241. The defendants having been arrested upon this writ, and held to special bail, a motion was made for a rule to show cause why a common appearance should not be accepted for the defendants, on the ground that the ac etiam did not particularly express the cause of action, as the statute of 13 Char. 2. c. 2. § 2.* directs; there being no such action as a plea of trover, it ought to have been in a plea of trespass upon the case. Upon showing cause it was submitted for the plaintiff, and resolved by the Court, that the cause of action is fully and clearly expressed; and although the ac etiam be not exactly clerical, yet nobody who reads it can doubt of the cause of action; besides, since the statute of ac etiam, 13 Char. 2. the statute of 12 Geo. 1. c. 29. has enacted that no person shall be held to special bail before an affidavit is made and filed of the cause of action, which has been done in this case; so that the defendants have had notice from the affidavit of the cause of action; and if that affidavit be sufficient, the Court cannot admit of a common appearance. Rule discharged.

5.

BARBER V. LLOYD. T. T. 1788. K. B. 2 T. R. 513.

A bill of Middlesex was to answer the plaintiff in a plea of debt instead of trespass, and also a bill to be exhibited in a plea of trespass on the case. The Court, on the authority of a case read from the master's book, refused to grant a rule to set the bill aside. A similar application had been also refused in H. T. 1783, K. B.

6.

LOCKWOOD V. HILL. H. T. 1790. C. P. 1 H. Bl. 310.

A motion was made for permission to enter an exoneretur on the cause of action bail-piece, on the ground that the ac etiam in the process against the principal was "in a certain plea of trespass on the case on promises for 251." the plaintiff having declared in debt for 2601.

is under 401.

common process without an ac etiam is sufficient.

In an action on
the lottery act
the amount of
the penalties
sued for must
be specified in
process though
the defendant be
not holden to
bail.

Sed per Cur. The statute 13 Car. 2. s. 2. c. 2. which requires the cause of action to be expressed in the writ, and which gives rise to the clause of ac etiam, operates only where the sum is above 40l. ; when, therefore, the debt is under that sum, the ac etiam is not

necessary.

7.

THE KING qui tam v. HORNE. T. T. 1791. K. B. 4 T. R. 349. On a motion to show cause why a bill of Middlesex should not be quashed, and the subsequent proceedings stayed for irregularity, it appeared that the action had been commenced by common process, in

* The 4th section of the statute 13 Char. 2. c. 2. was not mentioned, which says, "This act shall not extend to any attachment of privilege at the suit of any privileged person, and upon such writs of attachment such course shall be taken for security for appearance as bath been used." From this section it seems there is no occasion to insert an ac etiam of the particular cause of action in an attachment of privilege at the suit of an attorney, in order to hold a defendant to bail.

debt on the lottery act, without specifying the amount of the penalties, or giving any information to the defendant of the nature of the action. In support of the application it was submitted, that as the 27 Geo. 3. c. 1. enacts, "that upon every action, plaint, bill, &c. instituted or issued for the recovery of penalties, shall specify the amount of the penalty or penalties sued for," the common form was improper, the words of the act being imperative, and the requisites there pointed out indispensable. In answer to this proposition it was argued that the statute having given an action of debt generally, the clause adverted to could only have reference to cases were the defendant was to be holden to bail.

Sed per Cur. The observance of the special form directed by the legislature to be introduced in the process is essential to the validity of the proceedings; and it not having been done in this case, the process is irregular, and must be set aside.

See 4 T. R. 577; 6 T. R. 617; 2 H. Bl. 601.

8.

DAVISON V. FROST. E. T. 1802. K. B. 2 East, 305.

to be holden to bail, is irregular;

The defendant had been arrested and held in bail for 1777. without An omission in the amount having been inserted in the process, according to the the ac etiam 13 Car. 2. stat. 2. c. 2. and the rule of H. T. 2 Geo. 2. In showing when the cause part of the writ cause against a rule obtained for discharging the defendant on common of action is bail, it was argued, that since the enactments of 12 Geo. 1. c. 29. above 401. of the that no person shall be holden to bail upon process out of the superior sum for which courts for less than 10l. and that an affidavit of the debt shall be the defendant is made, and that the sum sworn to therein shall be endorsed upon the back of the process, and that the sheriff shall not take bail for more, the insertion of the sum in the ac etiam is wholly nugatory, because neither the sheriff nor the party is bound by it, but only by the sum sworn to and endorsed on the back of the writ. But the Court considered the process irregular, and observed that attempts to vary from the established forms without the authority of the Court ought to be discouraged. Rule absolute.

9.

MUNROE V. HOWE. H. T. 1819. K. B. 1 Chit. Rep. 171.

action.

A rule had been obtained to show cause why the bail bond given in Or omitting to this action should not be cancelled, and the defendant discharged out insert the partiof custody on filing common bail, on the ground that the ac etiam part of cular form of the bill of Middlesex, on which the defendant had been arrested, had not set out the true cause of action, as prescribed by the 13 Car. 2. st. 2. c. 2. but simply stated the sum of 300l. without proceeding to allege that the money was due on promises;

Per Cur. The decision in Davison v. Frost, 2 East, 305. (supra) is a decisive authority in favour of the present application. It is impossible in this case to discover whether the action be trespass or assumpsit. The precise cause of action should be stated in the ac etiam according to the statute and the established practice. Rule absolute.

10.

KERVAL V. FOSSETT. E. T. 1817. C. P. 1 Moore, 147; S. C. 7 Taunt. If the writ begin 458. S. P. FORBES V. PHILLIPS. H. T. 1806. 2 N. R. 98. as against two defendants, and On a motion to set aside proceedings, it appeared that A. B. and C. the ac etiam be were indebted to the plaintiff on a joint and several bond; that the only against one,

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1

that one only

ed, and the

plaintiff had sued them all severally by three writs of capias, in one should be arrest- of which A. and B. were named, but B.'s name was omitted in the ac etiam plaintiff may depart of the process. The plaintiff made an affidavit against clare against A. only, and declared against A. and B. separately, and the sheriff arrested both of the defendants. Two other writs were issued against the defendants B. and C. separately, on which they were arrested accordingly.

him alone.

Per Cur. The analogy between the facts of this case and those which gave rise to the decision in Forbes v. Phillips, 2 N. R. 98. renders the judgment given in that case conclusive against the present motion. It has been urged that this was a writ against two defendants, and that therefore one only could not be arrested on it. We perfectly concur in that proposition; but the name of B. in the capias may be substituted for that of Richard Roe, and taken as equivalent to the introduction of the name of a nominal party. The ac etiam is the only operative part of the writ which points out the person against whom the action is to proceed, and by which judgment is obtained. Richard Roe is joined in every writ, but is not declared against. The Court cannot distinguish between the name of Richard Roe and any other

person.

See Moss v. Birch, 5 T. R. 722; Spencer v. Scott, 1 B & P. 19; Stables v. Ashby, 1 B. & P. 49; Dalton v. Barnes, 1 M. & S. 230; Shawman v. Whalley, 6 Taunt. 185; Gent v. Abbott, 2 B. Moore, 301; 8 Taunt. 304; Maberley v. Benton, 5 B. Moore, 483.

Acknowledgment.-See tit. Bond; Evidence; Limitations, Statute of; Principal and Agent; Stamp.

Acorns,-See tit. Tithes.

Acquiescence. See tit. Appeal; Highway; Nuisance; Way, Right of.

Acquittal. See tit. Assault and Battery; Auter fois Acquit; Burglary; Conspiracy; Highway; Malicious Prosecutions; Perjury; Post Office.

Acquittance.-See tit. Bill of Exchange; Composition with Creditors; Forgery; Payment; Receipt; Release.

Acre,

1.

The 33 E. 1.16.

REX V. EVERARD. H. T. 1700. K. B. 1 Salk. 195; S. C. 1 Lord

Raym. 638; Holt, 173.

On a presentment at a court leet for erecting a cottage, &c. cònprescribing the trary to 31 Eliz. c. 7. s. 1. being removed into the Court of King's

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