by the affidavit of Mr. Gibbs, who, having devoted much attention to the subject (15), would probably have been attracted by any irregularity in the proceeding, particularly as the thing occurred to him for the first time under the new jurisdiction.] The statute 34 & 35 Hen. 8, c. 26, s. 41, provides that all fines levied before the justices of the Great Sessions in Wales" with proclamation made the same Sessions that the fine shall be ingrossed, and in two other Great Sessions then next to be holden within the same county, shall be of the same force and strength to all purposes as fines levied with proclamations before the justices of the common place in England;" and the 28th section of the 11 Geo. 4 & 1 Will. 4, c. 70, provides, that, upon all fines acknowledged in Wales, promation may be made at the successive Assizes to be holden within the principality, in the same manner and form and with the same effect as if the same had been proclaimed before the justices of Wales: and the affidavits shew that that course has invariably been followed. TINDAL, C. J.-There can be no doubt but that this fine was properly levied at the Autumn Great Sessions held for the county of Cardigan in the year 1830, and was then duly proclaimed: nor can there be a doubt that it was also proclaimed at the Autumn Assizes for 1831. The only question is, whether or not there is sufficient evidence before us of its having been proclaimed at the intervening Spring Assize. But, when we find that it has been the uniform course to proclaim all fines at the Sessions at which they are levied and at the two succeeding Sessions, that this practice is recognized and confirmed by the statute by which the jurisdiction was remodelled, and that the first and third proclamations have been duly made, I think it is not too much to assume that the officer whose (15) Mr. Gibbs, in 1821, published a very useful volume of practical instructions for suffering 1838. EVANS, dem., DAVIES, def. 1838. EVANS, dem., DAVIES, def. duty it was to do so did make the second proclamation in due course, though he has from some unexplained cause omitted to record the fact on the foot or inrolment of the fine. It seems to me, that, in allowing this defect to be supplied, we shall not be going further than we did in the former case. VAUGHAN, J.-I am of the same opinion. It appeared in Lloyd v. Nicholas, that the same officer whose duty it was to proclaim the fines at Cardigan, did, at the Spring Assizes for Carmarthen in 1831, proclaim the fines: and therefore I think it is no very violent presumption to conclude that he did his duty in this respect at Cardigan. BOSANQUET, J.-We ought to be extremely cautious in taking such a step as this. But I do not think we ought under the circumstances to refuse the relief prayed. ERSKINE, J., concurred. (16) The following cases are referred to in Bohun's Case, 5 Rep. 43. b. "In Essex, Dowling's Case, &c. Fine levied Hil. 6 E. 6, certified in a writ of error, Mich. 24 & 25 Eliz., and certificate by writ of certiorari Pasch. 26 El. and Trin. 26 El. ex assensu omnium justiciar' de Reg' Banco, et Com' Banco, et Baron' de Scaccario, pending the writ of error, proclamation indorsed sup' pedem finis were amended according to the proclamation on the note of the fine remaining with the chirographer, ut patet per record'. "In Suffolk, Down's Case, Mich. 38 & 39, by the motion of Williams, Serjeant-at-Law, proclam' pedes finis were amended Rule absolute (16). per proclam' notæ, in his verbis, super pedem finis proclam' was indorsed to be made 30 Julii, which was after Trin. Term ended; et super notam finis fuit 30 Jun.; and well and duly done, et emendatur per curiam after writ of error brought, and that assigned for error." By the statute 27 Eliz. c. 9, s. 2, it is provided that no fines levied in Wales or the counties palatine shall be reversed or reversible by any writ of error "for false or incongruous latin, razure, interlining, misentering of any warrant of attorney or of any proclamation, misreturning or not returning of the sheriff, or other want of form in words, and not in matter of substance." Williams asked leave to discontinue the action of ejectment without costs. Evans submitted that there was no ground laid for the application. TINDAL, C. J.-I think the application is reasonable, and the opposition to it, to say the least, very ungracious. The party waits until the action is brought, and then comes to ask that which certainly is a very great favour. I think he ought to consent either that the ejectment be discontinued without costs, or to try it without setting up the fine as an answer. It would be unjust in the extreme to make the lessors of the plaintiff pay costs of a discontinuance that is induced solely by the altered position in which the amendment of the fine places them. Evans ultimately consented that the action should be discontinued without costs. Rule accordingly. 1838. EVANS, dem., DAVIES, def. Ejectment dis continued with out costs. FISHER V. WARING. THE venue in this case was originally laid in London, but had been changed to Glamorganshire upon the usual affidavit. Talfourd, Serjeant, on the part of the plaintiff, now moved to discharge the rule for changing the venue, upon an affidavit that the cause of action arose partly in Glamorganshire and partly in Ireland.-In Neale v. Nevill and Savory v. Spooner, 6 Taunt. 565, 2 Marsh. 278, it was held, that, where the cause of action arises in a foreign country, the plaintiff may retain the venue without any undertaking to give material evidence. In Wilkinson v. Tattersal, 3 Bing. 429, 11 Moore, 328, an af Saturday, May 26th. The court re- charge a rule morganshire, obtained upon the usual affidavit, although it was sworn that the cause of action arose partly in that county and partly in Ireland. 1838. FISHER v. WARING. fidavit that the cause of action arose in Lancashire and not elsewhere, having been answered by an affidavit that it arose on a contract for the purchase of 500 bags of cotton, to be shipped at Trieste and delivered at Liverpool, this court refused to remove the venue from London to Liverpool. And in Hope v. Bennet, 2 N. R. 397, the court discharged a rule for changing the venue, upon an affidavit of the plaintiff that the cause of action arose principally in Ireland. TINDAL, C. J.-To entitle the plaintiff to bring back the venue, there must be an affidavit of special circumstances the language of the new rule (Hilary Term, 2 Will. 4, s. 103) is very general. The rest of the court concurring— Rule refused. Saturday, May 26th. Upon applica tion for leave to issue a distrin gas to compel to appear that NORMAN WINTER. WILDE, Serjeant, moved for leave to issue a distringas to compel an appearance. The affidavit upon which he moved stated a variety of circumstances tending to shew that the defendant was keeping out of the way to avoid service of process; but did not state the deponent's belief that she was not out of the kingdom. PER CURIAM.-That fact must be supplied (17). (17) See Fraser v. Case, 2 M. & Scott, 720: and see Esdaile v. Marshall, 5 Scott, 487, 4 New BAILLIE V. KELL and HOGG. 1838. Thursday, May 31st. ASSUMPSIT on a special contract to employ the plain- To a count in tiff as an accountant. assumpsit for the breach of an agreement to continue the plaintiff in the accountant, the defendants peaded, that the plaintiff received monies of the company for which he neg lected to acmade wrongful count-that he and improper The first count of the declaration stated, that, before the commencement of this suit, to wit, on the 7th of April, 1835, in consideration that the plaintiff, at the request of the defendants, had then become and was the servant of and employed by the defendants as an accountant, at and for a certain yearly salary or wages, to wit the salary or wages of 400l. per annum, to be therefore paid by them the defendants to the plaintiff, and had then promised the defendants to serve them in the capacity and upon the terms aforesaid, until the 1st September in the year aforesaid, and so on afterwards, from year to year, for so long as the plaintiff and the defendants should respectively please, until the expiration of the he made false, current year of the said service and employ, commencing improper entries on the 1st September in each year, the defendants then promised the plaintiff to continue him in their service and employ in the capacity and upon the terms aforesaid until the said 1st September in the year aforesaid, and so on afterwards from year to year, for so long as the plaintiff and the defendants should respectively please, until the expiration of the current year of the said service and payments on account of the company-that fraudulent, and in the books and accounts, and rendered false, fraudulent, and fabricated ac counts of pretended pay ments-that he made false, fraudulent, and fictitious representations of things done by him as accountant-that he refused to obey the commands of the defendants-that his accounts were so incorrectly, unskilfully, and improperly kept as to be utterly valueless to the defendants-and that he was unfit and incompetent to perform the duties of an accountant. The plaintiff replied de injuriâ. At the trial the defendants proved that the plaintiff had made false entries in the books and accounts of the company, and had concurred with certain of the directors in making false representations as to the state of the company's affairs; wherefore the defendants discharged the plaintiff from their service:-Held, that, the several allegations of misconduct in the plea being distinct and independent, the defendants, on proof of enough to justify their putting an end to the contract, were entitled to the verdict. Held also, that the fact of their having, at the time of dismissing the plaintiff, assigned a totally different reason for so doing, did not preclude the defendants from setting up the alleged acts of misconduct as a defence at the trial. To a common count for work and labor as an accountant, the defendants pleaded non assumpsit, and payment. It appeared that 1801. had been received by the plaintiff on account of salary: -Held, that the defendants were entitled to shew, in reduction of damages, that the plaintiff's conduct had been fraudulent, and that the sum received by him covered the actual value of his services, although there was no plea of fraud. |