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Page:United States Reports, Volume 2.djvu/162

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156 _ Casts ruled and adjudged in the r792. the latter, Cra@’.r demand againfl: Barr, exceeds Barr': v+`J demand againlt him. In either cafe, the defendant ought to have a verdiét. · Vnmcr for the Defendant. . Durrrsm wrfu S·rn.r.r:: HIS iwas an aétion for mefhe profits, after a recovery in · ejedment. It appeared, that fubfequent to that recove- · ry, the plaintiff had conve ed the fee {imple of the premifes to the defendant, in the ufual manner, by deed of bargain and {ale, with a {`pecial warranty : And two queflions were made for the opinion of the Court-rfl. Whether, after the convey- ance in fee {imple, the plaintiff could maintain this `silncm? ad. Whether thedeed was not, in law, a releafe of the mefne profits . ~ For the defendant were cited, Fremr. 36;. Bm. dj}. 62. ji 69. 359. 8 Ca. 154: a Litt. 508. But · . _ 1.5551 ru; Coursr :—'1`he cafe is clearly with the plaintrfil t ere Q » judgment accordingly} Wasn ·u:»_/ir: Amit:. HIS was an`a&ion_of qfumg/it brought in the year r 79 r.

 #0é· I The defendant pleaded nan-rjimrjjt, iflire was thereupon

joined ; and in january, 1792, the defendant obtaineda rule for trial or non prnr, with notice at bar. L Heat{y now moved that the rule he made abfolnte. But xlfarrir, { for the defendant, urged, that as no declaration had been filed, the caufe was not at yin-, according to the_dire£lions· cf the , aét of 1766; But, Br ·r1-ra Cotuvr:-The declaration mult eertainlybe filed before trial : And, when the plaintiff accepts a plea, it is an engagement that this {hall be done ; and a waiver by the defen- dant of any advantage from the omillion. If the objeflion had any weight, it ought to have been made when the rule was obtain-. _ . ed at the lafk '[`erm. -As the plaintiff then fubmittcd to the rule, · i he fhalli not now elude its operation. _· - judgment of non-fuit.4 __ __j AUSTIN .

  • Bmiurona, j'n:ri·:e: Having been counfel for the plaintifl}- I

give no opinion in the decilion of the cuuli:.