1812. BERTIE against had been in the occupation of it before as a tenant paying rent, I should have thought that he still continued to occupy it in the same character, if no new agreement BEAUMONT. had been entered into in that respect when he was taken into the plaintiff's employ, and that he was only to pay his rent in service instead of money. But no rent had ever been paid by him before, nor did he ever stand in the relation of tenant to the plaintiff. Then if his occupation were merely that of a servant, it was in law the occupation of the master. This has been often held in cases of burglary, and was so held recently in the case of the Whitehaven bankers (a). GROSE, J. This was the occupation of the plaintiff through the medium of his servant, which is in law the virtual occupation of the master and not of the servant. BAYLEY, J. (b) agreed. (a) Rex v. Stock and Another, 2 Taunt.339. Rule absolute. Tuesday, The defendant cannot plead by way of set- of the plaintiff, by another, to whom and for whose use it was originally given. WAKE against TINKLER. THE plaintiff declared in assumpsit as indorsee of a promissory note made by the defendant; as also for goods sold and delivered, and upon the common money counts; and laid his damages at 1607. The defendant pleaded, first, non assumpsit. 2dly, That before the making of the promises stated in the declaration, to wit, on the 2d of December 1809, the plaintiff executed a bond bond to one W. Atkinson in the penal sum of 2601., con- Bayley, who was to have argued in support of the demurrer, was stopped by the Court. Reader, contrà, relied on Bottimly v. Brook (a), and Rudge v. Birch (b), which he said were not overruled in (a) M. 22 G. 3. C. B. cited in Winch v. Keeley, 1 Term Rep. 621. (b) M. 25 G. 3. B. R. cited ib. 622. But see Lane v. Chandler, in the Exchequer, cited in Scholey v. Mearns, 7 East, 153. 1812. WAK E against TINKLER, .1812. WAKE against TINKLER. Winch v. Keeley (a), and other cases, where it had been held that the equitable assignment of a bond did not enable the assignee (b) to sue upon it, but that he must sue in the name of the assignor, though the latter had become bankrupt. In the two first of these cases the plaintiff having sued upon a bond executed to him as trustee for another, the defendant was allowed to plead a set-off against the cestuy que trust. This case, he admitted, went a step further, because here the bonddebt set off against the plaintiff came to the defendant by assignment from a third party, and was not originally executed for the defendant's use: but this, he contended, did not vary the case in principle from the prior decisions, as all the authorities agreed that a bond-debt was assignable in equity; and it did not follow that because the assignee could not sue for it at law, he could not set it off. But finding the Court decidedly against him, he forbore to press the argument further. Lord ELLENBOROUGH, C. J. If you could shew that this case ranged itself within the decisions of Bottimley v. Brook, and Rudge v. Birch, we would hear you further; but I am much more inclined to restrain than to extend the doctrine of those cases. At any rate, however, the present case goes further than either of them: for here the bond-debt was assigned to the defendant who now pleads it as a set-off; and it was not originally taken by the obligee in trust for the defendant. GROSE, J. The plea is bad both in form and sub stance. (a) 1 Term Rep. 619.; and vide Howell v. M'Ivers, 4 Term Rep. 690. (b) Vide Carpenter v. Marnell, 3 Bos. & Pull, 40. BAYLEY, BAYLEY, J. We have nothing to do in this place with any other than legal rights. And if we could notice such an equitable assignment, 2007. could not have been due at the time upon the principal sum of 1301. given on the 2d of December 1809. Judgment for the Plaintiff. 1812. WAKE against TINKLER. DUDLOW against WATCHORN and THIBAULT. to THE plaintiff declared in scire facias against the defendants upon their recognizance, as bail of G. T. Stretton, and stated the judgment recovered by the plaintiff in this Court against the principal for 1007., and the issuing of the two writs of scire facias to the sheriff of Middlesex, against the bail, with his returns of nihil. The defendants pleaded that the plaintiff ought not have execution against them for the said 1007. by virtue of their recognizance, because after the recovery of the said judgment, and before the issuing of the first writ of scire facias, no writ of capias ad satisfaciendum upon the said judgment by the plaintiff against Stretton was duly sued out and returned, or filed in the said Court, &c. according to the custom and practice of the said Court. The plaintiff replied, that after the recovery of the said judgment against Stretton, and before the commencement of this suit, the plaintiff sued out a writ of capias ad satisfaciendum upon the said judgment against Stretton, directed to the Sheriff of Middlesex, being the county in which the venue in the said action against Stretton was laid; by which writ, &c.; (setting it out;) to which the said sheriff returned non est inventus; as by the said writ of capias ad satisfaciendum, and the return thereof, duly affiled and remaining 1812. DUDLOW against WATCHORN. remaining of record in the said Court, &c. more fully appears. The defendants rejoined that the venue in the said action against Stretton was laid in the city of London, and not in Middlesex, as alleged in the replication. To this the plaintiff demurred, because the defendants in their rejoinder had departed from the supposed ground of defence stated in their plea; having in their plea alleged that no writ of capias ad satisfaciendum against the principal was sued out, returned, and filed according to the custom and practice of the Court; when by their rejoinder they admit that the ca. sa. in the replication mentioned was sued out, but rely on the supposed insufficiency of the said writ on account of its not having been issued and directed to the sheriff of the county in which the venue in the original action was laid: and if the defendants meant to avail themselves of such a defence, they should have stated it in their plea, and not in their rejoinder. Marryatt, in support of the demurrer, admitted that the capias ad satisfaciendum stated in the replication was irregular, and such as the party might have moved the Court to set aside; but it did not follow that such an irregularity in practice could be relied on in pleading, either by stating, as in the plea, that no writ of ca. sa. was duly sued out, &c.; or, in answer to the replication, stating the issuing in fact of a writ of ca. sa., by shewing that such writ was irregularly issued, which is a departure from the plea; the one in effect affirming that no writ issued; the other admitting the issue of it in fact, but insisting on its irregularity in practice; which the Court will not take notice of in pleading. [Lord Ellenborough, C. J. The allegation in the plea is not that no |