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1797.

In the Exchequer Chamber.

SYKES v. HARRISON, in Error.

May 17th.

The Court of

Chamber will

a Defendant in errr, under the

7.6. IO.

.

as on a

Note; For the

RROR on a judgment in the King's Bench in an action of Exchequer

covenant, for liquidated damages. The Plaintiff in error allow interest to was non-proffed.

On a former day Dampier moved “that it should be referred * to the clerk of the errors, to calculate the amount of the interest na judgment of

non pres as well “ upon the final judgment recovered in this cause, in His Majesty's judgment Court of King's Bench, from the time of the allowance of the of affirmance.

writ of error, until the signing of the non-pros in this Court, future, the in" and that such interest might be added to the damages, for which tereff, allowed. “ such final judgment was entered up.” But the Court seeming cent. instead to think there might be some difference between this and the case of 4b. of an affirmance of judgment, only granted a rule to thew cause.

Giles now shewed cause, and said that he would not contend for a distinction between a judgment of non-pros, and a judgment of affirmance, as he found no cases to warrant it, and the 3 H. 7. C.10. did not appear to allow fuch a distinction. But on the authority of Shepherd v. Mackreth, 2 H. Bl. 284. submitted that as it was a matter intirely in the difcretion of the Court, to allow interest in the shape of damages or not, they would not give it, where the delay was not imputable to the Plaintiff in error, for in fuch case the Defendant was entitled to no indulgence. He ftated that final judgment in the King's Bench was figned on the 6th of July 1795, foon after which the writ of error was brought; that in the Michaelmas Term following, the Plaintiff in error filed a bill in the Exchequer, and obtained an injunction; that the answer was not put in till the uth of February 1796, to which exceptions were taken and allowed; that an order was then made to amend the bill, which was accordingly done, and that a further answer was not put in till the 27th June 1796, and the injunction was not finally dissolved till the 15th December following. He contended, that notwithftanding the injunction, the Defendant might have proceeded to non-pros the writ of error, by a motion of course in the Exchequer ; i Fowler's Practice in the Exchequer, 330., and that confequently the delay was on his fide. He could not complain of the Plaintiff's depriving him of the front of his judgment, when in fact he was only tied up by an injunction.

At

1797

SYKES

HARRISON.

At all events the delay was imputable to him since the 10th of
December, as the injunction remained in force till that time only.

Eyre Ch.J. We certainly have no jurisdiction to inquire into the proceedings in equity. But the Plaintiff having proceeded there without just ground, as the event has shewn, is a strong reason to induce us to go as far as we can againtt him.

Dampier then fuggested, that as money was now so much rifen in value, if the Court should not allow the Defendant in error 5l. por cent, although 41. had been the usual fum, it would be enabling the Plaintiff in error to fight the Defendant with his own money.

Giles contrà, relied on the cases of Shepherd v. Mackreth, and Lord Lonsdale v. Littledale, 2 H. Bl. 287., where the Court allowed 41. per cent. only.

Per Curiam. The better way will be to allow 41. per cent. only, in the present instance, and to give notice that 5l. per cent. will be allowed in future.

Rule absolute

May 17th. 3.C.ST.R 558.

In the Exchequer Chamber. S.C. 3 Anfir. 781. 1 2 Easł,671.

DENN ex dem. MELLOR V. Moore in Error. 2 New Rep.348. Where judge UDGMENT on a special verdict in ejectment having been given ment for the Defendant on

for the Defendant in the King's Bench, and reversed in this a special verdict, Court, is reversed in the Excbequer Chambre now moved that it might be added to the judgment, Chamber, that

that the Plaintiff do recover his term, damages and costs. He Court on mction will give a final cited Philips v. Bury, Lord Raym. 10. Carth. 181.319. and judgment for the Skinn. 514., where Holt Ch. J. said “There would be a difference Plaintiff.

“ where judgment was given upon demurrer, and where upon a “ special verdict: where it is upon a demurrer, the Courts above “ ought to give a judgment for the Plaintiff (if they reverse that “ for the Defendant), and then it is fent down, and a writ of ««

inquiry goes, and upon that the Court below gives a final

judgment (a); but where it is upon a verdict, there, if they “ reverse a judgment they ought to give the same judgment that 66 ought to have been given at first, and that judgment ought to “ be sent to the Court below." (6)

(a) Winchcomb v. Shepherd, Cre. (6) Mulcany v. Eyres, Cro. Car. 511. Eliz. 746. Faldowe v. Ridge, Cro.Jas. 206. Omulconrie v. Ayres, Roll. Abr. 774. See relv.75. S.C.

allo 2 Saund. 237.256.

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The Court seemed at first to doubt whether they should grant this in the first instance, or only give a rule to thew cause, but ai confideration, thinking the point decided, said: that the Plaintiff muft enter up his judgment at his own peril, for if he enered it wrong, he subjected himself to another writ of error, and rererfal in another court.

Accordingly leave was given, in the first instance,

to enter up judgment of reversal, and that the
Plaintiff should recover his term, damages and
costs.

ANDERSON v. Noah.

May 13th. The Defendant in this action having been arrested by the name Mifnomer in of Noah, and put in bail by the name of Noel: It was ob

amended. jected by Le Blanc Serjt. at the time of justification, that there was no bail in the action before the Court: but the Court gave leave to amend the bail-piece.

common re

names of the

LANG Demandant, Lee, Gent. Tenant, and Wood

May 18th HOUSE and Others Vouchees. On this day Runnington Serjt

. desired the opinion of the Court, It is no objection on two objections, suggested by one of the officers, to the to the passing a paffing a common recovery.

covery, that the The firft objection was, that at the foot of the præcipe at bar, order of the it was stated that, “ the tenant in person voucheth to warrant vouchees in the " John Chappel Woodhoufe, clerk, Ann Monpefon, spinster, and præcipe at bar, Mary Woodhouse, widow," whereas the dedimus was, “ the varies

. Nor that tenant in person voucheth to warrant Mary Woodhouse, wi- the warrants of "dow, John Chappel Woodhouse, clerk, and Ann Monpesson, leveral vouchees, * spinfter;" tranfpofing the names.

are on separate

pieces of The second and more material objection, originated in the parchment. warrants of attorney, taken by virtue of the commission. For there being three vouchees, two of them had given one joint warrant of attorney, and the other had given his on a separate piece of parchment, when in strictness the warrant ought to have been joint, that is, all on one piece of parchment.

He said, that it was the wish of the officer, that this matter fhould be mentioned to the Court; though both the warrants of storey being annexed to the dedimus, could not be construed

to

1797.

LANG

WOODHOUSE.

to relate to any other premises than those contained therein. He added that all the parties were defirous that the recovery should pass.

The Court (absente Eyre Ch. J.) thought that there was nothing material in either of the objections. (a)

And Heath J. faid, that the warrants would be good even in a real suit.

(a) In Hil term 1799 in C. B. where and Mary his wife, fister and coparcener Thomas Gent. was demandant, Dobey Gen:. with Grace, vouchees, the same ohjection tenant, and Robert Leaper Percy and as the lait in the above case was taken and Grace his wife, and Edmond William Percy overruled, after a reference to this case.

May 18th.

I

BAIL

HOLWARD V. ANDRÈ. Taun. 59.

All in this action were opposed and rejected on a former Where bail are

day, and the Defendant surrendered on the next; frefi opposed, and re.

jected, and the bail being now brought up for justification. Defendant is surrendered on

Cockell Serjt. infifted, that the Defendant not having been a the next day, he prisoner at the time of the former opposition, the Plaintiff was bail without pay. entitled to the costs of that opposition, before the new bail could ing the costs of be suffered to justify. the former opposition.

Sed
per

Curiam. The Court will not infist on the costs of a former opposition being paid to the Plaintiff, where the Defendant is surrendered on the next day. It has fately been determined otherwise.

May 19th,

GARDNER v. BAILLIE. A bill of exceptions being L

E BLANC Serjt. moved that the prothonotary might review no part of the

his taxation in this case, and allow the costs of a bill of exrecord in the

ceptions. court below, is not to be in- Per Curiam. The bill of exceptions is no part of the record, cluded in the

till after judgment; if it were, the Court ought to take it into taxation of costs there. confideration before judgment; which is never done (a). The

caufe proceeds, and judgment is given here, as if there were no bill of exceptions; this may be accounted for, by the practice which formerly prevailed, of trying all causes in bank. The bill

(a) In 27 H. 8. 24, 25. in the King's “ here; but from this court he has only his Bench, Fitzjames, C. J. said " Ex rigore “ writ of error to Parliament, which would juris a party shall not take advantage of “ be a great delay, and cost to him; where

a bill of exceptions in arrest of jueg- “ fore it is prudent that we should exa6 ment, but Mall be put to his writ of error, “ mind the matter before judgment.” See *. and i his is good to be observed in C. B., also Enfield v. Hills, 2 Lev. 236. and Bula F for the party may have a writ of error ler's N.P.316.

of

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1797

GARDNER

BAILLIL.

of exceptions is carried into a Court of Error, and there annexed to the record; if it had been part of the record here, there would be no occafion to fend for the judge to acknowledge his fez!; when that is acknowledged, it is then, for the first time, anexed to the record. Being for the benefit of the party who tenders it, and remaining in his poffeffion, it is in his breast to employ it or not. Regularly it ought to be tendered at the time of the trial, and sealed by the Judge in Court; and though the practice is to allow the counsel to tender it afterwards, and some expence may arise to the parties before it is settled, yet this is not in a regular course of proceedings, upon which costs can be incurred. If the record be lengthened by the bill of exceptions, costs will be allowed for copying, fees to counsel, &c. by the · Court of Error. But there can be no cofts in the Court below.

Le Blanc Serjt. took nothing by his motion.

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if he has con

May 20h. SAUNDERS v. PITTMAN.

Posi, 103. A

Rule having been obtained by Runnington Serjt. to fhew The Court will

cause why the trial in this case thould not be put off till next trial at the inHilary term, on an affidavit, ftating that a maiter of a vefiel ftance of the

Defendant, on employed in the Southern Whale Fishery, was a material wit- account of the ness in the cause, and that he was expected to return about Christ- absence of a ma

terial witness, nas nest,

Shepherd Serjt. Thewed for cause an affidavit, ftating that this duci ed Junself aâion was brought on articles of agreement in the possession of the the cause of any Defendant; that the Defendant had delayed the cause, and pre- improper de. vented the Plaintiff from going to trial, while the Defendant's delay. sitness was in England, by withholding from the Plaintiff a copy of the articles, till he had moved the Court; when the plaintiff found himself obliged to amend. He added that after the amendment, the rule to plead happened by mistake to be in the original cause, instead of the amended one, and that the Defendant refused to waive that advantage, which produced a further delay.

Runnington contra. Per Curiam. The Court will not in all cases be content with a common affidavit to put off a trial. It must be satisfied that injaftice would be done, if such an application were refused. Here a poor Plaintiff claims a debt; he wants to amend his procecdings by the articles of agreement, and the Defendant delays Thewing them till he is obliged fo to do; and in the mean time his witness VOL. I.

D

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