to be copied; that the opposite attorney refused, and said he would sign judgment the first thing next morning: that deponent filed and served pleas on the 1st of October, that on the 9th of October the demandant's attorney filed and served a demurrer to one of the pleas in the first case, and to two in the last, and replications to the others: that on or about the 18th of October, deponent served a joinder in demurrer, and a demurrer to each of the replications, in consequence of which there was no issue of fact to try: that Monday, the 20th of October, was the last day for serving notice of trial for the Oxford assizes; and that on the 22nd or 23rd, he remarked to the demandant's attorney that the suits were thrown over, who said it was no matter as it was better to have the law first determined : that on Friday, the 24th of October, three days before the assizes, (the assize day being Monday the 27th) the demandant's attorney having obtained an order as of course to abandon his demurrers to the pleas, served replications thereto and a joinder in demurrer to the tenants' demurrer to the replication, and at the same time served notice of trial and assessment for the following Monday; that deponent (on the 25th) gave notice that if he proceeded application would be made to set aside the proceedings for irregularity: that finding the suits entered for trial, deponent offered to withdraw his demurrer and put the causes down on the docket, to enable him to send for his witnesses; but that the opposite attorney refused, saying he could hold verdicts-the notice served as aforesaid not specifying the irregularity alluded to: that no agreement or understanding ever existed that he should accept short notice of assessment of damages or of trial and assessment, or to that effect.

The notices of intention to move against the verdicts if the demandant proceeded, were proved to have been served on the 25th of October.

Cause was shewn by Leith, for the demandant, and he filed the affidavits of Edward Blevins, the demandant's attorney, and of John Blevins, the clerk of such attorney. Blevins (the attorney) states that declarations were served on the 1st of September on the tenant's attorney (Miller):

that shortly before the time of pleading expired he requested further time, which was granted; that just before the expiration of such extended time Mr. Miller's clerk requested more time, his master being absent from home: that Mr. Blevins reluctantly consented to wait till he returned, on the understanding that the time was extended on usual terms; that Mr. Miller, after his return, requested still further time, which Mr. Blevins at first declined granting, saying he would sign judgment the next day if pleas were not put in, but consented to wait till, 12 o'clock the next day, not wishing to be sharp or to take advantage: that Mr. Miller urged him to give the time he required, and that he would take short notice of trial, or any notice if necessary, or go down without notice, whereupon Mr. Blevins assented, and gave the time required, but expressly on the terms proposed as aforesaid: that no proposal to reduce any agreement to writing was ever made by the said Miller. He then explains his reasons for demurring to some of the pleas, and afterwards withdrawing the demurrers, which he did by leave of the court: that he then took issues in fact on all the pleas, when the tenants' attorney demurred to the (previous) replications: that Mr. Miller did not offer to withdraw his demurrers and go to trial on the facts: that he Blevins did not say his being thrown over the assizes was no matter, &c., but was annoyed at the observation of Mr. Miller on that subject, and asked him if he meant to break faith with him, when he (Miller) said he had only engaged to accept short notice of trial, and not of assessment. He also denies saying he could hold verdicts for the reason stated in Mr. Miller's affidavits; that this application is contrary to the express understanding, and against good faith. Also the affidavit of Mr. John Blevins to the same effect, corroborating Mr. E. Blevins' as to Mr. Miller's offering to take any notice of trial, or go down without notice if granted time. Both deny merits, and Mr. John Blevins asserts that, after the commencement of the suits, both tenants offered to assign the dower to the demandant by serving notice on Mr. E. Blevins to that effect; but that when conveyances were after

wards tendered they refused to execute the same. For the defendants, it was contended that the undertaking of their attorney did not extend further than to accept short notice of trial, which, according to the practice in England, adopted and recognized here, was four days, one exclusive; that as to his engaging to accept any notice, the affidavits were contradictory; and the only course for the court, under such circumstances, was to hold both parties to the practice, according to the facts in which they do agree.

For plaintiffs it was urged that the agreement to accept any notice was established by the affidavits of two persons, the plaintiff's attorney and his clerk, against the affidavit of defendant's attorney alone; and that, at all events, short notice of trial means four days both inclusive, and so the notice served was in due time.

MACAULAY, C. J.-On reference to the new rules, H. 13 V. No. 25, p. 9, and the statute 2 Geo. IV. ch. 2, sec. 22, the practice, as formerly established by the case cited by the defendant's counsel, must be considered as altered. The four days now required for giving short notice of trial is not under the English practice, where one day is excluded from the computation, but four days under a rule of

our own courts.

The notice, therefore, seems to have been given in due time; but were it not so, I think the verdict should not be disturbed for shortness of notice. After the positive affidavits filed in answer to this rule, and considering the indulgence shewn by the demandant's attorney to the defendant's attorney in waiting for the pleas, it seems a reasonable undertaking, and most unreasonable for captious objections to be taken to the notice served when it was. As to assessment of damages being included, no damages were assessed; nor did the Nisi Prius record require that they should be. There was an issue to be tried; and even if damages had been assessed, it would have been unreasonable in the defendant's attorney to urge such an objection. The omission to add the acceptance of short notice of assessment in the terms exacted was mere

inadvertence, and would have been given of course had it been asked. The demandant's attorney did not contemplate demurrers at the time, and the point has arisen out of the course taken by the defendant's attorney.

As to the sufficiency of the evidence and the objection of misdirection, the defendant's counsel did not persist therein in the argument. The verdicts are entered generally on all the issues.

MCLEAN, J., and SULLIVAN, J., concurred.

Rule discharged.

DAVIS ET AL. V. JARVIS, SHERIFF.

To an action by an execution creditor for not levying, and falsely returning nulla bona to a writ of fi. fa., the defendant pleaded that at the time of the delivery of the writ there were goods &c. of the execution debtor whereout he might have levied, &c., and that afterwards and before the return and before a reasonable time had elapsed for seizing the said goods &c. under the writ, and before any default or breach of duty by defendant as sheriff in respect of the said writ, and before suit, to wit, &c. the plaintiffs ordered the defendant not to take any proceedings on the writ until further directed, the plea went on to shew that afterwards, and before the return, &c., to wit, &c., the plaintiffs further directed the defendant to proceed and execute the writ, and that at the time of the last mentioned direction and thence continually there were not any goods &c. of the execution debtor, whereof, &c. Verification.

Upon special demurrer, assigning for cause that the plea was an argumentative and indirect traverse that there were any goods of the execution debtor, whereout the defendant might have levied, and that the omission to levy between the delivery of the writ and the further direction to the defendant was not sufficiently excused by the averment in the plea that the execution of the writ was countermanded before a reasonable time had elapsed for seizing the goods under it. Held, that the plea was a good defence to the action, and was well pleaded.

Writ issued 6th August 1851. Declaration dated 22nd September 1851.

The 2nd count of the declaration alleges, that on the 12th December 1850 the plaintiffs recovered a judgment in the County Court of the County of York against Herr Schallehn for a debt of 30l., and 6l. 98.4d. for damages and costs that on the 7th January 1851 the plaintiffs (having on the 12th December 1850 issued a writ of fi. fa.) issued an alias fi. fa. to the defendant, directed against the goods of the said Schallehn, to levy the debt and damages afore said, returnable the 1st day of March term then next, endorsed to levy 28l. 7s. 3d. debt and 6l. 9s. 4d. damages and costs, with interest, &c., and delivered to defendant, who was and is sheriff, &c. to be executed, &c.; and although there was

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then and afterwards, and while said writ was in force and before suit,divers goods of said Schallehn within defendant's said county, and defendant could and might and ought to have levied the moneys endorsed on the said writ, and a reasonable time for so doing had elapsed before the return of the said writ, of all which defendant, during all the time, had notice that defendant levied 5l. 6s. 4d., part of said money, as the goods of said Schallehn, yet did not levy the residue, but wrongfully neglected and refused so to do and made default, and during all the last mentioned time neglected the execution of the said writ, and afterwards—to wit, in the said March 1851-wrongfully and falsely returned that said Schallehn had not any more goods and chattels in his county, whereof he could make the residue of the debt and damages as aforesaid or any part thereof, as commanded by said writ, whereby plaintiffs are injured, &c.

8th plea to 2nd count.-That at the time the said execution was delivered to him, as in said count mentioned, there were goods of said Schallehn within his county, of which he he had notice, and where out he might have levied the moneys endorsed thereon; and that afterwards and before the return of such writ, and before a reasonable time had elapsed for the defendant's seizing or taking the said goods or any part thereof under the said writ, and before any default or breach of duty whatever by defendant as such sheriff in respect of said writ, and before this suit-to wit, on the 8th of January 1851—the plaintiffs ordered and directed him as such sheriff, and caused and procured him to be ordered on their behalf, not to take any proceedings on the said writ until further ordered so to do, and that from that time until defendant was further ordered to proceed, as after mentioned, the said writ was not in his hands to be executed: that afterwards and before the return of said writ-to wit, on the 1st of February 1851-the plaintiffs ordered and caused defendant to be ordered to proceed and execute the said writ, &c.; and that at the time of such order and from thence continually hitherto, there were not any goods of said Schallehn within defendant's said county, whereof he had notice or could or might or ought to have levied the