of promise in respect thereof, to wit, on the 28th day | of November, A. D. 1845, the said ship, in the course of her said voyage to London, did call and was at Cadiz, to wit, in the province of Andalusia and kingdom of Spain, and according to and within the meaning of the said terms upon which the said residue of the said goods and merchandise was shipped, as in the declaration alleged, and that the said residue of the said goods and merchandise was then within the jurisdiction of the officers of the customs of Cadiz aforesaid, and also within the jurisdiction of a certain court and tribunal, to wit, the tribunal of the sub-delegation of the revenues of the province of Andalusia aforesaid, in the said kingdom of Spain, then held at Cadiz, to wit, by and before a certain person, to wit, one Signor Don Manuel Lanchez Ocana, the intendant sub-delegate of the revenues of the said province, and then being the judge of and in the said court, and that whilst the said ship was so calling and was at Cadiz aforesaid, in manner aforesaid, and whilst the said residue of the said goods and merchandise, and every part thereof, were within the jurisdiction of the said court, and of the said officers of customs at Cadiz aforesaid, and before any breach of promise by the said defendant in respect thereof, to wit, on the day and year aforesaid, the said residue of the said goods and merchandise was then, by the proper authorities having jurisdiction in that behalf, to wit, the said officers of the customs at Cadiz aforesaid, and according to the law of Cadiz aforesaid, and of the said kingdom of Spain, lawfully taken out of the said ship, and the care and custody of the said defendant, and landed and examined and detained, to wit, for the space of thirty days, to wit, at Cadiz aforesaid, and within the jurisdiction of the said court, and against the will, and without the consent, neglect, or default of the defendant or his agents or servants in that behalf, on a certain charge, to wit, on a charge of suspicion that the same were contraband according to the laws of Cadiz aforesaid and of the said kingdom of Spain, and which last-mentioned charge was then, to wit, on the day and year aforesaid duly and according to the law of Cadiz and the said kingdom of Spain preferred in the said before mentioned court and tribunal held as aforesaid by the proper officer in that behalf, to wit, by one Don Juan Quijâda, lieutenant of custom-house officers at Cadiz aforesaid, and that afterwards and whilst the said residue of the said goods and merchandise was at Cadiz aforesaid, and so detained as aforesaid, and within the jurisdiction of the said court, to wit, on the day and year aforesaid, the same residue of the said goods and merchandise and every part thereof were and was by a decree and order of the said court and of the said judge thereof then duly made according to the law of Cadiz aforesaid and of the said kingdom of Spain declared to be, and was and were confiscated, to wit, upon the charge aforesaid, and by reason of the premises the said residue of the said goods and merchandise, and every part thereof were and was then and thence hitherto hath and have been wholly taken, kept, and detained from and out of the care, custody, possession, and control of the said defendant, to wit, by the said officers of the customs, and according to the law of Cadiz aforesaid and the said kingdom of Spain, and against the will and without the consent, neglect, or default of the said defendant, his agents, or servants in that behalf, and by means of the premises and not otherwise the said defendant was then and thenceforth hitherto wholly and absolutely hindered and prevented from further performing his said promise as to the said residue of the said goods and merchandise. That always up to and until, and at the time of the defendant being so hindered and prevented from performing his said promise as last aforesaid, he the said defendant did take care of and safely and securely carry and convey the same residue of the said goods and merchan dise, and otherwise observe and perform his said promise in respect thereof in all things, and was then and thenceforth but for the premises aforesaid, ready and willing to, and would have fully performed his said promise. Verification. Special demurrer for the following causes: that it is not averred with sufficient particularity that the residue of the said goods and chattels in the said plea mentioned was confiscated through any act, default, or neglect of the plaintiffs, and that it is consistent with the said plea, that the said residue was adjudged to be contraband, and was confiscated by the act or neglect of the defendant or some third person. And also, that it is not averred with sufficient particularity in the said plea how or wherefore, or on what account, or by what act, neglect, or default the said residue of the said goods and chattels became and was confiscated, nor is any information thereof, or of any of the circumstances relating thereto given to the plaintiffs by the said plea; and also, that it is not shewn in the said plea by what law or custom of Cadiz aforesaid or of the said kingdom of Spain, or by what violation or breach of such law or custom the said residue of the said goods became liable to be and was confiscated, or by whom the said law or custom was broken or violated. And for that it is not averred with sufficient particularity in the said plea, that it was necessary for the purpose of the said voyage for the said vessel to go within the jurisdiction of the said court. And for that it is not averred in the said plea that the said residue of the said goods were contraband by the law of Spain, but only that the said court found them to be so. And also, that the said plea does not sufficiently confess the breach in the said declaration, nor sufficiently avoid the same, and amounts to an argumentative traverse of that part of the breach in the said declaration, which alleges that the said residue of the said goods and chattels was lost by the careless, negligent, and improper conduct of the defendant. Joinder therein. The demurrer was argued in Easter Term, (May 4), by Crompton, for the plaintiffs.-The plea is bad on special demurrer: it does not bring the case within any of the exceptions in the policy. The general rule is, that if a party enters into an absolute contract, he will not be discharged from the performance of it unless it be declared illegal by the law of his own country. Independently of the express exceptions, the defendant would not be discharged by the act of God. (Com. Dig. "Condition" (D.) 1; Blight v. Page, note (a) to Towting v. Hubbard, 3 B. & P. 295; Sjoerds v. Luscombe, 16 East, 201; Evans v. Hutton, 4 Man. & G. 959; Gosling v. Higgins, 1 Camp. 451). A breach of the revenue laws of a foreign country is no default in an English subject. Lord Mansfield, in Holman v. Johnson, (Cowp. 343). One country does not take notice of the revenue laws of another. (Bowcher v. Lawson, Cas. temp. Hardw. 84; Lord Abinger, in Pellecat v. Angell, 2 Cr., M., & R. 313). [Lord Denman, C. J., referred to Story's Conflict of Laws, pp. 245, 267.] The plea is bad for not pointing out the particulars of the seizure; it does not allege that the goods were contraband, but only that they were detained and confiscated on a charge of suspicion that they were contraband. Bovill, contra.-The plea is a good answer to the action. The voyage specified and agreed upon was one in which the vessel would touch at Cadiz, and, by the terms of the contract, the goods of the plaintiff are brought within the jurisdiction of the courts of Spain. The condemnation of the goods at Cadiz was a proceeding in rem, by a court of competent jurisdiction, and, therefore, primâ facie binding on the plaintiffs. The terms of the exceptions have received a liberal construction. "The act of God" means any inevitable accident or casualty. (Jones on Bailments, p. 104, 4th edit.) An inevitable accident must have occurred without the neglect or default and against the will of 1 Salk. 291; M'Leod v. Schultze, 1 Dowl. & L. 614; Story's Conflict of Laws, s. 549; Coggs v. Bernard, 2 Ld. Raym. 909). There is no case in which the shipowner has been held liable under such circumstances as the present. In Barker v. Hodgson (16 East, 204), the express grounds on which the charterer sought to excuse himself failed, the simple illegality of unloading the cargo did not dissolve the contract. As to the last objection, the judgment is examinable here: in order to avoid the effect of it, the plaintiff should shew that it is not binding, and that the goods were not contraband. It sufficiently appears for what the goods were condemned, and that they were condemned by lawful authority: it is immaterial what the charge was, if the goods were declared to be confiscated by a court of competent authority. Crompton, in reply.-The loss does not fall within any of the exceptions in the bill of lading. [Lord Denman, C. J.-You need not argue that point.] Then it is said that the plaintiff was to be blamed in putting the goods on board, but no fault is imputed to the plaintiff in the plea: non constat that he knew that the goods were con traband by the law of Spain when they were shipped. It may have been a sudden political event which induced the government of Spain to decree this particular cargo to be contraband. As to its being an implied contract that the goods were lawful for that voyage, an action for deceit will lie against the shipper if he misleads the shipowner, by a misdescription of the goods. In Hill v. Idle (4 Camp. 327) and Magalhaens v. Busher, (4 Camp. 54), the law of England would have been broken, and that was an answer. Here the contract was to be performed in London, though the ship was to call at Cadiz: if the ship was not able to go to Cadiz, the contract for carrying the goods to London was not gone. Then it is said, that though the Court is not bound to notice the revenne law, effect is to be given to the judgment of the Court at Cadiz. If it is primâ facie evidence, the defendant should plead the fact, and give the judgment in evidence: it would not operate in the way of discharge of the contract. Foreign attachment is an answer to an action, because it operates as an assignment to another party, and that is recognised by the law of England; but the debt remains, and must be paid to another party. the defendant. [Lord Denman, C. J.-The act might as the going to London.] Assuming this to be a conbe violence by the king's subjects: you make the de- tract to deliver on a particular day, the contract has fendant's incapacity to resist the whole ingredient.] I been put an end to. In the case of a promise to pay a do not contend for the whole of that extent, though debt to a merchant on a particular day, if the debt is in the Roman law vis major relieves the party. An attached in London or in Scotland, the promise is disaccidental collision or misfortune without fault in either charged and the party absolved. (Com. Dig. "Atparty has been held to be within the exception of "dan-tachment;" Brook v. Smith, 1 Salk. 286; Savage's case, gers of the seas." (Buller v. Fisher, 3 Esp. 67; Abbott on Shipping, p. 386, edit. by Serjt. Shee). [He also cited Gabay v. Lloyd, (3 B. & C. 793); Fletcher v. Inglis, (2 B. & Ald. 315, 326.] [Patteson, J.-Lord Tenterden distinguishes between the act of God and the act of man.] (Abbott on Shipping, 337). Further, exception of dangers of rivers and navigation will include anything happening in the course of the voyage, and this loss accrued while the ship was in the course of navigation. Again, there is an implied contract on the part of the shipper that his goods are lawful goods for the particular voyage. The merchant must lade no uncustomed or prohibited goods; (Abbott on Shipping, p. 402); and, when the vessel arrives, he is bound to provide everything necessary on his part to enable the captain to land the goods. (Hill v. Idle, 4 Camp. 327). By shipping goods liable to confiscation, the plaintiffs have failed to do all in their power to prevent the seizure of the goods at a port in the course of the voyage. (Magalhaens v. Busher, 4 Camp. 54). Suppose the plaintiffs had been passengers under this contract, and had been seized by the authorities at Cadiz; the shipowner is not an insurer in every country where he lawfully is by the terms of the contract. [Wightman, J.-Would this be an excuse under a contract to deliver on a particular day?] No; but it would be an excuse if the contract was to deliver within a reasonable time. The law of the country where a contract is to be performed, governs the contract. (Story's Conflict of Laws, s. 280). [Patteson, J.-No part of the contract as regards these goods was to be performed at Cadiz: calling at Cadiz is merely a description of the voyage; and if the ship had not called at Cadiz, there would have been no breach of the contract.] The ship was to touch there by the terms of the bill of lading; and, if she had not touched there, the insurance would have been forfeited, and the shipowner would have been liable to an action. As to the revenue laws of a foreign country not being binding, that doctrine is reprobated by writers on commercial law. (Story's Conflict of Laws, s. 257, 2nd edit.). [Lord Denman, C. J.-We are not bound to take notice of the revenue laws of a foreign country; but if we are informed of them, that is another case.] If the Court will not take notice of the revenue laws of Spain, for the purpose of invalidating the contract, the act and judgment of Lord DENMAN, C. J.-I cannot help thinking that a court of competent jurisdiction will be respected. this is a bold attempt, supported with ingenuity, to ob In Boucher v. Lawson, (Cas. temp. Hardw. 84), Lord tain a modification of the old law on this subject; but Hardwicke, C. J., said: "The reason gone upon by if it is to receive any modification, this does not appear Lord Chancellor King, in the case of Burroughs v. to me to be a favourable case for introducing it. Here Jamineau, was certainly right, that where any court, there is a positive contract to convey goods, and the exwhether foreign or domestic, that has the proper ju- cuse offered for breach of the contract is not that any risdiction of the case, makes a determination, it is thing has been done by the plaintiffs in contravention of conclusive to all other courts." And though it is de- the law of nations, or the law of England, or the law of cided by Houlditch v. The Marquis of Donegal, in the Spain, as known to the parties at the time of making House of Lords, that the decision of a foreign court is the contract. There is nothing here of general prin not conclusive, still it is prima facie evidence, which ciple to protect the defendant from the consequence of must be rebutted by the other side. (Power v. Whit- a breach of his contract. The argument is founded more, 4 M. & S. 141, 150; Phillips v. Hunter, 2 H. upon a decree which we see to have been made under Bl. 402, 410; Hughes v. Cornelius, 2 Show. 232; The the revenue law of Spain, and a suggestion that the plainDuchess of Kingston's case, 11 St. Tr. 261). There are tiffs neglected to do something which they were bound circumstances not within the exceptions in a charter- to do, or that they were guilty of deceit; but there is party which dissolve the contract. (Pickering v. Bar-nothing to shew either of these things; and the defendant clay, Sty. 132; Hadley v. Clarke, 8 T. R. 259; Abbott on Shipping, p. 532, 596; Barton v. Williford, Comb. 56). [Erle, J.-The circumstance may dispense with the shipowner or captain going to a particular country. Patteson, J.-It would not dissolve this contract so far entered into the contract, having the entire state of things before him. Supposing the revenue law of a foreign country can be taken notice of by us, which, probably, for some purposes, it may be, there is nothing to shew that either of these parties were aware of the law, and it may have been a law subsequently passed. As to the argument that this is within the spirit of the exceptions, I think the Court is bound to disclaim any attempt to extend the exceptions to cases not within the terms, both for the sake of the interests of individuals, and with regard to the principles of justice, otherwise these contracts would be easily evaded by collusion. I adopt the reasons given in the able judgment of Lord Ellenborough in Atkinson v. Ritchie, (10 East, 530), which disposes of the present case. PATTESON, J.-I am of the same opinion. The question is, as in Atkinson v. Ritchie, referred to by my Lord, whether a party brings himself within the exception in the contract, or can shew that he has been prevented from doing so by the opposite party. Now, it is clear that the facts which have occurred here do not bring the defendant within any of the exceptions, for he was not prevented by the act of God, or of the perils of the seas, or of navigation. It was argued, that he was within the exception, "perils of navigation," because, in the course of the voyage, the ship went into Cadiz, and the goods were there seized as contraband. The case cited nearest to this was where a ship was injured while in a dry dock, but that occurred in the regular course of navigation, whereas what here happened had nothing to do with the navigation of the vessel, but it arose entirely from the law of Spain, of which both the plaintiffs and the defendant must be presumed to have been entirely ignorant; and then it is clear that this loss did not occur through the act of the plaintiffs. If both parties knew what the law of Spain was, the defendant cannot complain; and we cannot assume that the plaintiffs knew it, and that the defendant did not. If a plea could be framed so as to shew that the plaintiffs knew that the goods were liable to be confiscated if they went into Cadiz, and the defendant did not, such a plea might perhaps amount to a defence. But the case here rests entirely on the question, whether there is anything in the exceptions of which the defendant can avail himself as a defence to the action. There is no case in point on either side. Gosling v. Higgins (1 Camp. 451) is dis tinguished, because there was a remedy over in that case; but I doubt whether that was the ground of the decision. Lord Ellenborough's view is clear from Atkinson v. Ritchie, (10 East, 530), where he says that the party is bound to deliver the goods, unless he protects himself by the terms of the bill of lading, and brings himself within those terms. The analogy of foreign attachment does not apply: that may in some sense be said to be the act of the party, because the creditor to a certain extent claims under the party. Here, both parties were ignorant of the law which caused the loss; and we do not know the law under which the goods were declared contraband, though it must have been a revenue law of Spain, and whether it was on account of the nature of the goods themselves, or in consequence of some act done at Cadiz. I disclaim the notion that this action is to depend upon the negligence or diligence of the plaintiffs in ascertaining the law of the foreign country. It is for the defendant who engages to carry the goods to bring himself within the exception in the contract, which he has not done in this case. leged in the plea that there was any wrongful act or default of the plaintiffs, nor any knowledge of the goods being contraband at Cadiz, nor that it was by desire of the plaintiffs that the goods were taken into Cadiz. Their object was that the goods should be taken to London, the calling at Cadiz was only a description of the route of the ship: neither party was aware that the goods were liable to be seized at Cadiz, or that anything would occur to frustrate the object of the voyage. The impossibility of delivering the goods at London arose from circumstances of which neither party was aware at the time. The case falls directly within the principle so ably laid down by Lord Ellenborough in Atkinson v. Ritchie, (10 East, 530), who cites other cases in the beginning of his judgment, and proceeds, "The rule laid down in the case of Paradine v. Jane (Alleyn, n. 27) has been often recognised in courts of law as a sound one, i. e. that when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." It appears to me that this is a prevention by inevitable necessity, against which the defendant ought to have provided by his contract. It is said there is an analogy to the case of foreign attachment, by which a party may be prevented performing his contract to pay a debt; but I think there is no analogy between the two cases. the case of foreign attachment, the law enables a third party to step in and take advantage of a contract made for the benefit of another, which is quite different from what occurred here. In ERLE, J.-I am of the same opinion. The defendant undertook to insure against all risks, except those specified. The seizure in Spain, under the revenue laws of that country, is not one of them. As to the remaining sources of defence, it appears to me that there is no sound ground upon which the defendant can find a defence.-Judgment for plaintiff. TRINITY TERM. FLOWER v. Newton. Under Stat. 6 & 7 Vict. c. 73, s. 37, a Plea which asserts the Non-delivery of an Attorney's Bill, &c., but does not also assert that it was not sent by Post, is insufficient on Special Demurrer. Debt for work and labour as an attorney on retainer. Plea, confessing work done and fees payable on retainer, alleged that the plaintiff did not, within one month before action brought, deliver a bill according to statute. Special demurrer, because the plea did not negative a sending by post, it did not follow the form of the statute. Wordsworth, in support of the demurrer.-This negation was not necessary under stat. 2 Geo. 2, c. 23, s. 23; but is necessary under 6 & 7 Vict. c. 73, s. 37. Newton, contra.-It is admitted that, if the plea does not negative a sending by post, it is bad. But the allegation that plaintiff did not deliver involves the negation; for a sending by post is a delivery. (Pack v. Alexander, 3 M. & Scott, 789). [Patteson, J.-There the question was whether the special contract to send by post had been complied with, not whether posting a letter is delivery.] A replication by the plaintiff that he did deliver, would raise the issue whether he sent by post. (Warwick v. Noakes, Peake, N. P. C., 67). Lord DENMAN, C. J.-I have no doubt in this case: sending by post is a particular method of delivery pointed out by the statute, and the defendant should have denied such a delivery. WIGHTMAN, J.-I am of the same opinion. The defendant, by the bill of lading, entered into a positive contract to carry the goods, and to deliver them at London, with certain exceptions of risk, within which he must bring himself. It has been argued, with more ingenuity than success, that the loss is within either the exception of the act of God or the perils of the sea and navigation; but we have expressed our opinion during the argument, that it is not to be attributed to PATTESON, J.-The act distinguishes between delivereither of these. Then, it was argued, that the defend-ing, sending, and leaving; delivery in the statute means ant was prevented from delivering the goods by the act a delivery actually to the person; the other methods of a Court of competent jurisdiction; but it is not al- are implied deliveries, or rather, other modes of making the defendant acquainted with the bill. His plea shews ERSATUM.-In Reg. v. The Recordar of Leeds, p. 817, col. 2, 1. 56, after the point in question, add in each case. BAIL COURT.-TRINITY TERM. son who served the writ indorsed the date of the service, but died before making the affidavit of the service and indorsement. June 11.-Bovill applied for leave to enter an appearance, sec. stat., upon an affidavit detailing the facts. The party serving the writ having died, it is impossible to obtain an affidavit of the service and indorsement. The affidavit on which this motion is made states that the writ came to the defendant's possession. It is submitted, that all that the statute requires has been complied with, so far as is practicable: the plaintiff, there fore, ought to be at liberty to enter an appearance for the defendant, without being put to the trouble of effecting another service, which he may have great Waiver of Irregularity, by taking Declaration out of difficulty in accomplishing. Office. WIGHTMAN, J.-I do not think I can grant the rule. COURT OF COMMON PLEAS.-TRINITY TERM. Lush, on a former day, obtained a rule nisi to shew-Rule refused. cause why the appearance entered by the plaintiff according to the statute, and all subsequent proceedings, should not be set aside, with costs, on the ground that the writ with which the defendant had been served was issued in the city of London instead of the county of Middlesex. June 8.-Lawes shewed cause.-The writ was issued on the 19th April; a copy thereof was served on the 20th; on the 28th a notice of declaration was served; and on the 1st May the defendant took it out of the office. He afterwards obtained a summons to plead several matters, which was abandoned, whereupon the plaintiff signed interlocutory judgment. The taking the declaration out of the office was a waiver of the of irregularity, and the defendant ought not now to be Lush, contra.-The affidavit on which the motion was made states it was the 25th April when the irregularity was discovered, up to which period it was supposed the writ was issued into Middlesex. As it is, we were served with a writ in the city of London, issued into Middlesex. [Wightman, J.-You have waived the objection by taking the declaration out of the office.] There is no such writ as that which the defendant is served with. There are two irregularities: first, on the face of the writ the service is irregular, the defendant being served with a writ in London, issued into Middlesex; secondly, the copy varies from the original. WIGHTMAN, J.-The defendant, I think, waived the objection, by taking the declaration out of the office. The rule must be discharged.-Rule discharged, with costs. OMEROD V.-June 11. A Person who had served a Writ of Summons died, after making the Indorsement required by 2 Will. 4, c. 39, s. 1, but before swearing the Affidavit of Service; the Court refused Leave to enter an Appearance, sec. Stat., although it was sworn that the Writ had come to Defendant's Possession. By the 2 Will. 4, c. 39, s. 1, and R. G., M., 3 Will. 4, r. 3, he person serving a writ of summons shall indorse on te writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty to enter an appearance for the defendant, according to the statute; and every affidavit on which such an appearance shall be entered shall mention the day on which such indorsement was made. The per * Reported by W. B. Brett, Esq. KEPP v. WIGAN and Another.-June 11. Action on Bond-Staying Proceedings as to Part of the Breaches of Condition-8 & 9 Will. 3, c. 11. In an Action on a Bond conditioned for the accounting of certain Monies, and in which Particulars of the Breaches of the Condition had been delivered, the Cour refused to stay Proceedings as to one of the Items in such Particulars, upon Payment of the Amount of such Item. Debt on bond by the defendants, as sureties for one Lee, conditioned for the due performance by Lee of the office of collector of taxes, and for the accounting for all monies received by him in his office. The bond of that month, Lee, the principal debtor, died. No was executed on the 6th October, 1846, and on the 14th breaches had been assigned by the plaintiff in his declaration, nor had the defendants pleaded; but an order of a judge had been obtained by the defendants for par ticulars of the breaches, under which the plaintiff had delivered particulars, charging the sum of 5017. as re ceived by Lee of Messrs. Combe & Co. on the 3rd October, 1846, and also various small sums, amounting to 127. 18s. 5d., received by Lee between the 6th and 14th October. The defendants, being advised that they had no defence as to the 127. 18s. 5d., but that they might successfully resist the payment of the 501, (as being received before the execution of the bond), applied for, and obtained from Williams, J., the following order, dated 20th May, 1847: "I do order, that, on payment of 121. 18s. 5d., the amount of the second and subsequent items in the particulars of demand, all further proceedings in this cause as to those items be stayed, the plaintiff being at liberty to sign judgment as a security for any future breaches of the conditions in the bond, if any; but such judgment shall not be signed until after the trial of an issue or issues, raised or to be raised, upon the question of the defendants' liability to the first item, or until judgment or further order." A rule having been obtained calling upon the defendants to shew cause why this order of Williams, J., should not be rescinded, of Byles, Serjt., now shewed cause.-The objection to this order is, that the judge had no power to make it; within the stat. 8 & 9 Will. 3, c. 11. The plaintif but it is submitted, that he had, and that the case falls would be bound at some stage of the proceedings to set out the breaches of the condition, either by way replication to the defendants' plea, or by suggestion on the record; and then he would be entitled to recover only in respect of such breaches as should be proved, and not for the whole penalty of the bond, which at common law was forfeited. It would be hard on the defendants if this order could be made, as they cannot pay money into court in respect of any of the breaches, and will have otherwise no means of staying the costs of trying breaches, which they do not deny. The cases of James v. Thomas (5 B. & Adol. 40) and Gowlett v. Hariforth, (2 W. Black. 958), relied on by the other side, are, in fact, not cases against this application. In the former of those cases, the whole sum was demandable by the default which had been made in not paying the interest, and the Court allowed the plaintiff to have judgment and execution for the whole, and not merely for the interest; and in the last case also, the bond was to stand in force for the whole sum due, if default were made in payment of the instalments, and the Court accordingly refused to stay proceedings on payment of the instalments in arrear. But, here, all that is sought is a stay of proceedings as to the items given in the particulars of breaches, upon payment of the amount of those items, so that the other items which are disputed may be contested, without the defendants having to try and pay the costs of items which they do not dispute. In Brunsdon v. Austin, (1 Tidd's Prac. 571), where trover was brought for a steamengine, &c., the Court of King's Bench made a rule for staying the proceedings, on delivery to the plaintiffs of a part of the goods for which the action was brought, and payment of costs up to that time, provided the plaintiffs would accept thereof, in discharge or otherwise; the articles delivered were to be struck out of the declaration, and the plaintiffs to be subject to costs, unless they obtained a verdict for the remainder of the goods, or proved a deterioration of the part delivered up. So, also, in Earle v. Holderness, (4 Bing. 462), the defendant was allowed, in an action of trover for letters, to stay the proceedings as to one of the letters, and paying the costs. If relief should be given in such actions, surely a case in which a party is seeking to enforce a penalty is one strongly entitling the defendants to relief. [Maule, J.-Could you have done that which you now ask for before the 8 & 9 Will. 3, c. 11?] No. [Maule, J.-Then, does that statute put you in a better position?] It is submitted, that the granting of this application would be only carrying out the intention of that statute, which was, that the plaintiff should not recover more than, according to the condition of the bond, was actually due. Channell, Serjt., contra.-The judge had no authority, without the plaintiff's consent, to make this order. In all the cases cited on the other side, in which the proceedings have been stayed, the action has been in tort, and the claim divisible, which is very different from the present, where the action is for the penalty on a bond, and which before the statute 8 & 9 Will. 3, c. 11, the plaintiff would be entitled, independent of the condition, to receive at law. The penalty is still the debt notwithstanding the statute, and though execution can only be taken out for the damages actually sustained. In Van Sandau v. (1 B. & A. 214), an action was brought on a bond conditioned for the payment of a principal sum on a day certain, with in terest in the meantime, there having been a breach of the condition in non-payment of half-a-year's interest. The defendant there obtained an order of a judge for stay of proceedings, upon payment of the interest due and costs; but the Court afterwards discharged this order, saying that the plaintiff was entitled to proceed in the action, and have judgment for a security. So, in Steel v. Bradfield, (4 Taunt. 227), in an action on a note indorsed by the payee, that if the interest was paid on certain stipulated days, the note should be given up, the Court refused to stay proceedings on payment of the interest, the same having been omitted to be paid as agreed on. These are both cases similar to the present, and strongly shew that the Court will not interfere. In cases provided for by the statutes 4 & 5 Anne, c. 16, and 8 & 9 Will. 3, c. 11, relief is given by the Legislature; by the former of which statutes, in certain cases of debt on bond, the defendant may pay into court the principal and interest, and obtain relief; and by the other of such statutes, the plaintiff is restrained in suing out execution to the breaches of the condition which he has actually sustained. But the present case falls under neither of those statutes, and the Court has therefore no power to stay the proceedings, and grant the relief now asked for. WILDE, C. J.-It would have been satisfactory to me to have been able to grant what the defendants ask; but I am not able to do so, for the power does not belong to the Court. Before the statute 8 & 9 Will. 3, c. 11, the bond became a debt upon the condition being broken, and the parties seeking relief were driven for it to a court of equity. The matter was then brought before the Legislature, and the Legislature thereupon granted relief to a certain extent. We are now asked to add to that statute. If the Court had the general power of adapting its proceedings to the justice of each particular case, we might be induced to grant what is now asked, but rules have been laid down for certain cases to which we are obliged to adhere; and we are not entitled to alter the legal rights of parties, and vary the rules of law according to the facts of each particular case. I admit that to this there are certain exceptions, as striking out some of the items in actions of trover, and staying the proceedings thereon upon delivery up of the subject of such items. But these differ from the present, and are cases in which, with all due deference to their great authority, supposing them applicable, I should have felt great difficulty in following by granting this application. Here, however, we are asked to create a fresh precedent, and to give relief beyond that which the Legislature has expressly provided. I think we have no such power, and cannot interfere. The rule, therefore, must be absolute. COLTMAN, J.-The statute has existed for about 150 years, and, therefore, the inconvenience now complained of must have perpetually occurred before now. Every lapse of time, without the existence of any precedent for the same, is a strong authority against granting the relief now asked. MAULE, J.-I am of the same opinion that this rule should be made absolute. It is admitted, that before the statute of 8 & 9 Will. 3, c. 11, the Court had not this power. Then that statute confers on courts of law a power to relieve to a certain extent, which before only belonged to the courts of equity. This Court has not any equitable jurisdiction in an action of debt upon a bond, except what is given to it by the stat. 8 & 9 Will. 3. It is clear, that the statute has not conferred the power now sought to be exercised. The Court cannot assume a power not conferred by the statute, merely because, as it is said, it would be carrying out the object of the statute, for the so doing would be to assume the strongest legislative power, inasmuch as it must be considered, that, as the Legislature has declared, that relief shall be given in certain cases, it must be taken in effect to declare that it shall not be given in other cases. CRESSWELL, J., concurred.-Rule absolute. SITTINGS IN BANC AFTER TRINITY TERM. In an Action for an Infringement of certain Letters-patent, the Defendant pleaded, "that, before the Letterspatent, the Invention had been, and was wholly and in part publicly and generally known, practised, and published in England:"-Held, that the Effect of this Plea was to set up the single Defence of User, and that a Direction to the Jury to find the Issue joined upon such Plea for the Defendant, if they were satisfied that the Invention was known and published be |