12. Motion for a ne exeat regno, against the defendant, who was fued as adminiftratrix. The affidavits ftated threats of abfconding, and of embezzling the effects of the teftator; which might, according to general computation, be worth about 2000k Motion refused, as no fum was positively fworn to, and there was no precife fum for which the writ could be marked; alfo, for that there was no precife ground stated for the suggestion that the defendant was going abroad. 3 Bro. Ch. Rep. 370. 1791. Shearman v. Shearman.

13. Bill by two refiduary legatees against a surviving executor. Motion for a ne exeat regno against John Higgins, the agent of the perfon claiming to be reprefentative of the deceased executor, on the ground that he had got into his poffeffion a bond from one Palmer to the deceased executor for 300 and odd pounds, which was the fecurity for the refidue; and the affidavit ftated, that the decrafed executor paid one of the plaintiffs regularly the intereft, as his fhare of the refidue. No perfonal reprefentative of the deceased executor was before the court, there being a conteft as to the representation in the ecclefiaftical court. The affidavit ftated a declaration, that he was going abroad. The motion was refused. 3 Bro. Ch. Rep. 476. 1792. Storey v.

Higgins.

14. Upon a fuit in the ecclefiaftical court by wife for alimony. Quere, whether before the decree the Chancellor will grant a ne exeat regno against the husband. 1 Vef. jun. 94. 1790. Coglar v. Coglar.

15. An affidavit to fupport a motion for a writ of ne exeat regno must be pofitive. 5 Vef. jun. 91. 1799. Roddam v. Hetherington.

16. A general affidavit of belief that the defendant means to quit the kingdom, is fufficient, without the circumstances upon which that belief is founded. 5 Vef. jun. 96. 1799. Ruffel v. Afby.

17. Upon an application for a ne exeat regno no fubpoena is ferved; but upon perfonal fervice of the writ the party is bound to appear and put in his anfwer, and then he may apply to fuperfede the writ; but not upon affidavit. Ibid.

18. Rifkings, by deed of gift in March 1799, gave all his property to plaintiff Sarah Gardiner, and to the defendant Wm. Edwards, in truft for himself for life, and after his decease to pay feveral fums to different relations, and also 400l. and Sool. to defendant. By his will executed in May 1799, he appointed the plaintiff and defendant his executors, and died foon afterwards. The defendant, who was a mariner, poffeffed himself of property belonging to the teftator to the amount of 1000%, as the deponent believed, and after the teftator's death defendant poffeffed himfelf of other property to the amount of another 1000l. The affidavit then fuggefted, that the defendant intended to go abroad; that he had declared his intention of going to America, without executing the trufts of the deed; having been accused of the murder of the teftator; but the grand jury had thrown out the bill:

plainti.f

plaintiff fuggefted that she was in danger from defendant, Motion refused. 5 Vez. jun. 593. 1800. Barstow v. Kilvington.

(C) Directed, executed, and discharged. How.

1.ON motion to discharge a writ of ne exeat regno where the perfon lives out of the kingdom, Lord Hardwicke Chancellor, faid, it is a reafon which generally prevails with me not to grant fuch a writ, where one of the parties corresponding or dealing lives out of the kingdom, and the transactions were on the faith of having juftice in the place where the parties refpectively refide and fo it has been held where one lived in England, and the other in one of the plantations or fettlements abroad, which are governed by the fame laws; but in Gibraltar and Minorca the laws are not the fame as here; in the former the jurifdiction is not adapted to the determining property and accounts be tween merchants. In Minorca the Spanish method of justice prevails, and therefore the reafon does not hold where one of the parties refides in one of those places. But I do not rely on that so much, as that there was no faith between the parties here, of having juftice where they refide; for two of them lived at first at Gi braltar, afterwards one of them removed to Minorca. His Lordfhip therefore ordered, that upon the defendant giving fecurity in 1000l. by recognizance, with two fureties, conditioned to abide and perform fuch decree and orders as the court should make in the cause; the writ of ne exeat be discharged. Ambl. 177. 1753. Robertfon v. Wilkie.

2. Writ of ne exeat regno obtained by one inhabitant of Antigua against another upon a bond ftated in the bill to be loft; difcharged on giving fecurity to abide by the decree. 3 Bro. Ch. Rep. 218. 1791. Atkinson v. Leonard.

3. Writ of ne exeat discharged on payment into court of the fum for which it was marked. 1 Vef. jun. 96.

1790. Evans v.

Evans.
4. Writ of ne exeat regno obtained by one French emigrant
against another, difcharged upon the circumftances appearing
upon the affidavits in fupport of the bill, and upon the answer,
which may be read the application not being in the nature of
an application to hold to bail, but to the difcretion of the court,
applying a remedy, not in its origin diftinctly applicable to pri-
vate tranfactions between fubject and subject; it is very delicate
to apply it as against foreigners; it would be a neceffary term
that it fhould be fimply a case of equity. 4 Vef. jun. 577. 1799.
De Carriere v. De Calonne.

5. Writ of ne exeat regno obtained by a refident here, against a refident in the Weft Indies, upon a demand rising there, when the anfwer came in, was discharged under the circumftances with cofts, against prochein amy of the infant plaintiff, but upon the admiffions in the answer the defendant was ordered to give fecurity

15 Vin. 538.

to

to abide the decree. 5 Vef. jun. 91. 1799.
rington.

Roddam v. Hethe

6. When a party is taken, he must give a bond to the Master of the Rolls, in fuch penalty as is required by the writ for yielding obedience thereto, or fatisfy the court by answer, affidavit, or otherwife, that he hath no defign of leaving the kingdom, or that he is not indebted to the plaintiff in any fum of money whatever, before the writ can be difcharged. Hind. Prac. Ch. 612.

7. The prefent practice is for the defendant to give security to abide the decree, before the writ is difcharged, which fecurity is taken by recognizance before the Mafter. lbid.

[G]

Negative Pregnant.

15Vin. 543. (A) What Plea fhall be faid to be Negative Pregnant.

A
Return to a mandamus (to certify the election of a recorder,)
"that the corporation were not duly affembled to proceed
"to the election of a recorder," is bad, because it contains a ne-
gative pregnant. Per Buller J. The writ fays, that the corpora-
tion being duly affembled proceeded to the election of a recorder,
and the return is that they were not duly affembled to proceed to
the election of a recorder. This means that they were duly affembled
for fome purpose, but not for the purpose of electing a recorder;
but that mode of pleading cannot be fupported. Rex v. The
Mayor, &c. of York, 5 Term Rep. 79.

15 Vin. 550.

Re unques accouple.

A

Replication to a plea of "ne unques accouple" in dower, alleging a marriage in Scotland, may conclude to the country; and in fuch replication it is not neceffary to ftate that the marriage was had at any place in England, by way of venue. Nderton v. Ilderton, 2 H. Bl. 145.

Right-walker.

・BY Y 14 G. 3. c. 90. f. 14. watchmen are empowered to apprehend all night-walkers, malefactors, rogues, vagabonds, and other loofe and diforderly perfons difturbing the public peace, or whom they shall have caufe to fufpect of any evil defigns, and all perfons lying or loitering in any fquare, ftreet, court, lane, mews, yard, alley, paffage, or place.

2. If a conftable take up a perfon in the night, as a nightwalker or diforderly perfon, without any juft ground of fufpicion, and any perfon comes to refcue the party fo detained, and kills the conftable, or any that affifts him, it has been held only manflaughter, be the constable in his jurifdiction or not. Queen v. Tooley, 2 Ld. Raym. 1297.

3. To make an arreft of a night-walker justifiable there ought to be probable caufe of fufpicion. Ibid.

4. A conftable is guilty of a mifdeanour, if he fuffer a ftreetwalker, delivered to his cuftody by one of the nightly watch, to efcape. Rex v. Bootie, 2 Burr. 866.

ין:

Ru dicit.

1. IF the declaration be delivered or filed, with notice to plead within the first four days of term, the defendant has all the morning of the fifth day to plead; and judgment cannot be figned for want of plea, till the opening of the office of the afternoon of that day. Shepherd v. Mackreth, E. 35 G. 3. K. B.

2. But in any other part of the term, if the defendant do not plead within the four days, the plaintiff may fign judgment on the morning of the fifth day. I Term Rep. 16. 4 Term Rep. 195, 6. 5 Term Rep. 35.

3. Judgment may be figned for want of a plea, if the defendant do not rejoin. Petrie v. Fitzroy.

4. Judgment by nil dicit may likewife be figned, if the defendant pleads a plea not adapted to the nature of the action, as nil debet in affumpfit, &c. Barnes, 257.

5. So if the defendant after craving oyer of a deed, do not fet forth the whole of it, the plaintiff may fign judgment as for want of a plea. Slater y. Horne, 4 Term Rep. 370.

[G] 15 Vin. 555.

[G] 15 Vin. 556.

6. But the plea of not guilty, in an action of debt on a penal ftatute, is not fuch a nullity as will warrant the plaintiff in signing judgment. 1 Term Rep. 462.

7. In general, when the defendant pleads an improper plea, the fafeft courfe is, not to fign judgment, but to demur, or move the court to fet it aside.

8. A demurrer, as in abatement to a replication to a plea in bar, held not to be a difcontinuance, though the plaintiff might have taken judgment by nil dicit. 2 Ld. Raym. 1023.

[G] 35 Vin. 556.

Nil habuit in Tenementis,

1.

N debt for rent, on an indenture of leafe, if the defendant plead nil debet, he cannot give in evidence that the plaintiff bad nothing in the tenements, because if he had pleaded that specially, the plaintiff might have replied the indenture, and estopped him. 1 Salk. 278. 2 Ld. Raym. 1154. S. C.

2. A tenant who has agreed in writing to hold premises at a certain rent may allege, that the party with whom he made the agreement never had any intereft in the premises, if fuch party was never in poffeffion. Otherwise he cannot. Chettle v. Pound,

1 Ld. Raym. 746.

3. If both leffee and leffor fign a leafe, the former is estopped to plead nil habuit in tenementis to an action of debt for rent by the leffor. Wilkins v. Wingate, 6 Term Rep. 62.

4. In an action of covenant for rent on an indenture brought by the affignees of the leffor, (a bankrupt) the leffee cannot plead that the leffor nil habuit in tenementis. Parker v. Manning, 7 Term Rep. 537.

5. Nil habuit in tenementis is a bad plea to affumpfit for the ufe and occupation of lands; and in debt for rent on deed poll, it muft be, plaintiff had nothing at the time of the action or at any other time. Lewes v. Willis, 1 Wilf. 314.

6. It was moved to plead double, nil debet and nil habuit in tenementis. Refufed. Per cur.-The latter may be given in evidence upon the former. Barnes, 333. Sed vide Salk. 277. Supr. pl. 1,

7. Nil habuit in tenementis, or any thing tantamount cannot be pleaded in an action of covenant. Palmer v. Ekins, 2 Stra. 817.

8. The defendant may plead nil habuit in tenementis to an action of covenant brought by the committee of a lunatic on a leafe made by him as committee in his own name; for the committee of a lunatic cannot grant fuch a lease. 2 Wilf. 130.