verdict for the sum claimed, the defendant having liberty to move on the above points.

Mansel having obtained a rule to shew cause why a venire de novo should not be awarded into the proper county,

Gurney shewed cause.-The Court having sat on the 20th by adjournment, the cause must be considered as in fact tried on the 18th. In Sherman v. Pinsley (a), the objection appeared upon the record, but the Court said that as the defendant had appeared at the trial, they could not say that there was no jurisdiction, and they added, that if it were necessary they would amend the record. Here, it appears by the record that the proceedings are correct, as the trial is stated to have taken place on the 18th, which was before the writ was returnable. The same rule governs this case as is applicable to the sittings, which are in contemplation of law but one day. So, with respect to the assizes, the death of the defendant between the commission day and day of trial, is not a ground for setting aside a verdict in favour of the plaintiff: Jacobs v. Miniconi (b), Anonymous case (c), Taylor v. Harris (d). It is the same as if the Court had commenced trying the cause on the 18th, and being unable, for want of time, to finish, it had unavoidably stood over until the 19th.

Then, as to the second point, it is said that this action is local, and Bond v. Cudmore (e) is relied upon by the other side. That, however, was the old action of debt which depended upon the privity of estate. There, the plaintiff set out the demise and accruer of title to himself, and described the locality of the premises, the right of action

(c) 1 Salk. 8.

accruing only from the possession of the land. But, assuming the action to be local, this objection is aided, after verdict, by the 16 & 17 Car. 2, c. 8: Mayor of London v. Cole (a). Until the 11 Geo. 2, c. 19, s. 14, passed, the old action of debt was the only remedy of the assignee of the reversion when the demise was, as here, by parol. That statute gave the action for use and occupation, and it is maintainable by the assignee without attornment: Lumley v. Hodgson (b). In debt for use and occupation it is not necessary to state the situation of the premises. King v. Fraser (c), Kirtland v. Pounsett (d). [Parke, B.Lumley v. Hodgson was for rent in the time of the reversioner. Here you are not merely seeking to recover bygone rent.] No objection was made at the trial that the plaintiff claimed too much. [Alderson, B.-Should it not have been pleaded that the premises were in another county?]

Mansel, in support of the rule.-The Judge of the Sheriff's Court could have no jurisdiction to try the cause, except what is given by the 3 & 4 Will. 4, c. 42, s. 17, and which is expressly defined by that statute. The case is analogous to writs of mesne process or execution, where nothing can be done upon the writ, after it is returnable. The defect is not cured by the entry on the record, as the Judge had no power to make the proceedings nunc pro tunc. This is distinguishable from the case put of the death of the defendant between the commission day and the day of trial, because the assizes are only one day; but here, the authority to try the case is circumscribed by the writ of trial; after the writ was returnable, all power to try the cause was at an end. The proper course was to reseal the writ. A witness could not be indicted for perjury where a trial took place under these circum

stances.

(a) 7 T. R. 583.

(b) 16 East, 99.

(c) 6 East, 348; 2 Smith, 462.

(d) 1 Taunt. 570.

PARKE, B.-There is considerable difficulty upon the first point; and I think the defendant had better pay the money, and the parties agree to a stet processus. If the cause is not tried before the writ is returnable, the proper course is to apply to a Judge to extend the time for the return of the writ. There may be also some difficulty as to the plaintiff's right to recover the whole amount; he is seeking to recover not only a compensation for the use and occupation of the premises during the time that he was assignee, but also for some part of the time they were in the possession of the reversioner.

ALDERSON, B.-The parties had better consent to this arrangement, as there are difficulties about the trial taking place after the writ was returnable.

Rule discharged on the above terms.

1838.

MORTIMER

ບ.

PREEDY.

DIGNAM v. MOSTYN.

THIS was an action to recover an attorney's bill of costs, amounting to 77. 6s. On the 11th of November, the defendant having applied for further time to plead, an order was made for four days' further time, upon the terms of his "pleading issuably, rejoining gratis, and taking short notice of trial, if necessary, whether tried before the sheriff or not," On the 3rd of January full notice of trial before the sheriff of Middlesex was given for the 11th. That notice and the issue were returned by the defendant the following day on account of some irregularity. Another notice was given on the 5th for the 16th, which the defendant again returned as irregular. On the 16th, the cause was struck out of the paper, the plaintiff not being prepared to try it. A third notice was given on the 17th for the 25th, and the action was then tried as an unde

1838.

DIGNAM

v.

MOSTYN.

fended cause, and a verdict found for the plaintiff.

W. H. Watson had obtained a rule nisi to set aside the verdict on an affidavit, that the defendant lived more than forty miles from town, and therefore was entitled to fourteen days' notice instead of eight. It appeared that the sheriff sat twice a week for the purpose of trying causes.

C. Jones shewed cause, and contended that the defendant was deprived by the Judge's order of insisting upon a longer notice of trial. If the plaintiff had been compelled to give fourteen days' notice of trial, he must, in consequence of the four days allowed for pleading, have been thrown over one sitting of the under-sheriff. Besides, if there was any irregularity, it was waived by the defendant not returning the subsequent notice of trial.

Lord ABINGER, C. B.-If you have permission to give short notice of trial at the sittings after term, you must try at those sittings or give long notice. The same rule applies to a trial before the sheriff.

PARKE, B.-There is no difficulty in the construction of the words "if necessary," where the trial is to take place at the sittings in or after term, when a particular day is appointed. If that day occurs so soon after issue joined as not to leave an interval of fourteen days, then short notice of trial becomes necessary. But the case presents some difficulty when the trial takes place before the sheriff, who sits twice in the week. I agree, however, with my Lord, that if the plaintiff neglects to try at the next practicable sittings, he loses the benefit of the order, and must give a regular notice. With respect to the alleged waiver by keeping the notice, there is no authority to that effect; the returning it would be a mere act of courtesy, and no consequence results from not doing so.

Rule absolute.

1838.

WEBB V. FAIRMANER.

At In computing

THIS was an action for goods sold and delivered.
the trial before Gurney, B., it appeared that the goods
were sold to the defendant on the 5th of October, at two
months' credit. On the 5th of December the present action
was commenced. It was objected on the part of the de-
fendant that the action was commenced before the credit
had expired. The learned Judge reserved the point, and
the plaintiff obtained a verdict.

Richards having obtained a rule to set aside the verdict,

Platt and Mansel shewed cause.-In computing the time of credit, the day of sale must be reckoned as one of the days, and as payment might be insisted upon on the first moment of the 5th of December, the cause of action was complete on that day. The rule is, that if the computation is to be made from a particular day, that day is to be excluded; but if from a particular fact, the day on which the fact occurred is included. In Clayton's case (a) a lease for three years from henceforth (that is, from the delivery) was held to mean inclusively of the day on which the delivery was made. So, in The King v. Adderley (b), the question was as to the liability of the sheriff to return a writ after the expiration of his office; and it was held, that the day on which he left office was to be reckoned as part of the six months, within which, he was liable to make the return. Under the 21 Jac. 1, c. 19, s. 2, which enacts, that a trader lying in prison two months after an arrest for debt, shall be adjudged a bankrupt, it has been held that the day of arrest is to be included: Glassington v. Rawlins (c). So, where the law requires a (a) 5 Rep. 1. (b) 2 Doug. 463. (c) 3 East, 407.

the time of

credit on a mer

cantile contract, the day on which the contract was excluded from the reckoning.

made is to be