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In the Exchequer Chamber.
SYKES v. HARRISON, in Error.

ERROR on a judgment in the King's Bench in an action
covenant, for liquidated damages. The Plaintiff in error
was non-proffed.

1797.

May 17th.

The Court of

of Exchequer,

Chamber will

allow intereft to

a Defendant in error, under the

3 H.7. c. 10.

f

na judgment of non pres as well as on a judgment of affirmance.

Note; For the

On a former day Dampier moved "that it should be referred "to the clerk of the errors, to calculate the amount of the intereft "upon the final judgment recovered in this caufe, in His Majefty's "Court of King's Bench, from the time of the allowance of the "writ of error, until the figning of the non-pros in this Court, " and that such intereft might be added to the damages, for which "fuch final judgment was entered up." But the Court feeming cent. instead to think there might be fome difference between this and the cafe of 41. of an affirmance of judgment, only granted a rule to fhew caufe.

future, the intereft allowed will be 51. per

Giles now fhewed caufe, and faid that he would not contend for a diftinction between a judgment of non-pros, and a judgment of affirmance, as he found no cafes to warrant it, and the 3 H.7. c.10. did not appear to allow fuch a diftinction. But on the authority of Shepherd v. Mackreth, 2 H. Bl. 284. fubmitted 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 cafe 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 anfwer was not put in till the 11th 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 anfwer was not put in till the 27th June 1796, and the injunction was not finally diffolved 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 courfe in the Exchequer; 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 fruit of his judgment, when in fact he was only tied up by an injunction.

At

1797.

SYKES

V.

HARRISON.

May 17th.

3. C.5 T. R 558.

S. C. 3 Anftr. 781.

12 Eaft, 671.
2 New Rep.348.

Where judgment for the Defendant on

a fpecial verdict,

is reversed in the
Exchequer
Chamber, that
Court on motion

will give a final
judgment for the

Plaintiff.

At all events the delay was imputable to him fince the 10th of December, as the injunction remained in force till that time only. EYRE Ch. J. We certainly have no jurifdiction to inquire into the proceedings in equity. But the Plaintiff having proceeded there without juft ground, as the event has fhewn, is a ftrong reafon to induce us to go as far as we can against him.

Dampier then fuggefted, that as money was now fo much rifen in value, if the Court fhould not allow the Defendant in error 5l. per cent. although 47. had been the ufual fum, it would be enabling the Plaintiff in error to fight the Defendant with his own money.

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

Per Curiam. The better way will be to allow 4l. per cent. only, in the prefent inftance, and to give notice that 51. per cent. will be allowed in future.

Rule abfolute.

In the Exchequer Chamber.

DENN ex dem. MELLOR v. MOORE in Error.

JUDG
UDGMENT on a special verdict in ejectment having been given
for the Defendant in the King's Bench, and reverfed in this
Court,

Chambre now moved that it might be added to the judgment, that the Plaintiff do recover his term, damages and cofts. He cited Philips v. Bury, Lord Raym. 10. Carth. 181. 319. and Skinn. 514., where Holt Ch. J. faid "There would be a difference "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 fame judgment that "ought to have been given at firft, and that judgment ought to "be fent to the Court below." (b)

66

(a) Winchcomb v. Shepherd, Cro. Eliz. 746. Faldowe v. Ridge, Cro. Jas. 206. Yelv. 75. S. C.

12

(b) Mulcany v. Eyres, Cro. Car. 511. Omulconrie v. Ayres, Roll. Abr. 774. See allo 2 Saund. 237.256.

The

The Court feemed at firft to doubt whether they should grant this in the first inftance, or only give a rule to fhew cause, but on confideration, thinking the point decided, faid: that the Plaintiff muft enter up his judgment at his own peril, for if he entered it wrong, he fubjected himself to another writ of error, and reverfal in another court.

Accordingly leave was given, in the firft inftance,
to enter up judgment of reverfal, and that the
Plaintiff fhould recover his term, damages and
cofts.

LANG Demandant, LEE, Gent. Tenant, and WOOD-
HOUSE and Others Vouchees.

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On this day Runnington Serjt. defired the opinion of the Court, on two objections, fuggefted by one of the officers, to the paffing a common recovery.

The firft objection was, that at the foot of the præcipe at bar, it was ftated that, "the tenant in perfon voucheth to warrant "John Chappel Woodhouse, clerk, Ann Monpeffon, fpinfter, and "Mary Woodhouse, widow," whereas the dedimus was, "the "tenant in perfon voucheth to warrant Mary Woodhouse, wi"dow, John Chappel Woodhouse, clerk, and Ann Monpeffon, fpinfter;" tranfpofing the names.

45

1797

ANDERSON V. NOAH.

May 18th.

the bail-piece amended.

THE Defendant in this action having been arrefted by the name Mifnomer in of Noah, and put in bail by the name of Noel: It was objected by Le Blanc Serjt. at the time of juftification, that there was no bail in the action before the Court: but the Court gave leave to amend the bail-piece.

DENN

V.

MOORE.

May 18th,

It is no objection to the paffing a

common re

covery, that the

order of the

names of the

vouchees in the præcipe at bar, varies. Nor that the warrants of

and the dedimus

attorney of the

feveral vouchees

are on separate pieces of

The fecond and more material objection, originated in the parchment. warrants of attorney, taken by virtue of the commiffion. 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 ftrictness the warrant ought to have been joint, that is, all on one piece of parchment.

He faid, that it was the wifh of the officer, that this matter should be mentioned to the Court; though both the warrants of attorney being annexed to the dedimus, could not be construed

to

1797.

LANG

ย.

WOODHOUSE.

furrendered on

the next day, he may justify new bail without paying the costs of

the former oppofition.

to relate to any other premifes than thofe contained therein. He added that all the parties were defirous that the recovery should pafs.

May 19th.

A bill of exceptions being no part of the record in the court below, is not to be included in the taxation of cofts there.

The Court (abfente 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 fuit.

(a) In Hil term 1799 in C. B. where Thomas Gent. was demandant, Dobey Gent. tenant, and Robert Leaper Percy and Grace his wife, and Edmond William Percy

May 18th.

HOLWARD v. AndrÈ.

I Taun. 59.

BAIL AIL in this action were oppofed and rejected on a former day, and the Defendant furrendered on the next; fresh jected, and the bail being now brought up for juftification.

Where bail are opposed, and re

"Defendant is

Cockell Serjt. infifted, that the Defendant not having been a prisoner at the time of the former oppofition, the Plaintiff was entitled to the cofts of that oppofition, before the new bail could be fuffered to juftify.

per

and Mary his wife, fifter and coparcener with Grace, vouche es, the fame objection as the laft in the above cafe was taken and overruled, after a reference to this case.

Sed Curiam. The Court will not infift on the cofts of a former oppofition being paid to the Plaintiff, where the Defendant is furrendered on the next day. It has lately been determined otherwife.

GARDNER V. BAILLIE.

LE
E BLANC Serjt. moved that the prothonotary might review
his taxation in this cafe, and allow the cofts of a bill of ex-

ceptions.

Per Curiam. The bill of exceptions is no part of the record, till after judgment; if it were, the Court ought to take it into 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 caufes in bank. The bill

(a) In 27 H. 8. 24, 25. in the King's Bench, Fitzjames, C. J. faid " Ex rigore "juris a party fhall not take advantage of "a bill of exceptions in arrest of judg"ment, but fhall be put to his writ of error, " and this is good to be obferved in C. B., for the party may have a writ of error

"here; but from this court he has only his "writ of error to Parliament, which would "be a great delay, and coft to him; where"fore it is prudent that we should exa"mine the matter before judgment." See alfo Enfield v. Hills, 2 Lev. 236. and Buller's N.P. 316.

of

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 feal; when that is acknowledged, it is then, for the first time, annexed 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 fealed by the Judge in Court; and though the practice is to allow the counsel to tender it afterwards, and fome expence may arise to the parties before it is settled, yet this is not in a regular courfe of proceedings, upon which costs can be incurred. If the record be lengthened by the bill of exceptions, cofts will be allowed for copying, fees to counfel, &c. by the · Court of Error. But there can be no cofts in the Court below. Le Blanc Serjt. took nothing by his motion.

SAUNDERS V. PITTMAN.

A

RULE having been obtained by Runnington Serjt. to fhew caufe why the trial in this cafe should not be put off till next Hilary term, on an affidavit, stating that a master of a veffel employed in the Southern Whale Fishery, was a material witnefs in the cause, and that he was expected to return about Chriftmas next,

Shepherd Serjt. fhewed for cause an affidavit, ftating that this action was brought on articles of agreement in the poffeffion of the Defendant; that the Defendant had delayed the caufe, and prevented the Plaintiff from going to trial, while the Defendant's witnefs 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 miftake to be in the original caufe, inftead of the amended one, and that the Defendant refufed to waive that advantage, which produced a further delay. Runnington contrà.

Per Curiam. The Court will not in all cafes be content with a common affidavit to put off a trial. It must be fatisfied that injuftice would be done, if fuch an application were refufed. Here a poor Plaintiff claims a debt; he wants to amend his proceedings by the articles of agreement, and the Defendant delays fhewing them till he is obliged fo to do; and in the mean time his witnefs

VOL. I.

D

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