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the allowance, he might wait for any length of time, till execu- 1796. tion had been issued, and then harass the party by serving him with the allowance and putting in bail, by which the execution would be fuperfeded.
Le Blanc in support of the rule. The case of Jaques v. Nixon is diftinguishable from this; for there the writ of error was allowed, and the allowance served before final judgment, and bail was put in within four days after the judgment; but since bail could not possibly be put in until after judgment, and as the service and allowance were suspended till the judgment, and both began to take effect at that period at once, it cannot be collected from that cafe whether the operation of the writ of error as a superfedeas commenced from the allowance or the service.
EYRE Ch.J. This is a point extremely clear. The party has four days to put in bail after the allowance of the writ of error (a). It is indeed the practice to get the allowance of the writ 2 Bos. Go Pull. of error previous to the judgment being figned; but that is an irregularity permitted for the convenience of the party, for the judgment in the action is the true foundation of the writ of error. The allowance therefore though previously obtained cannot be operative till judgment has been figned; and four days uuft then elapse before the party signing it can safely sue out execution. But if the writ of error be allowed after judgment has been figned, the party entitled cannot regularly sue out execution until four days after the allowance.
BULLER J. Two things are requisite to make a writ of error a superfedeas of execution: to wit, the allowance, and putting in bail. If the writ of error be allowed before judgment, the time of putting in bail runs from the judgment, if after judgment from the time of the allowance. Per Curiam,
Rule discharged (6). (a) That is after delivery of the writ Barnes 205. ed. 3. and Sykes ř. Dawson, to the clerk of the errors. Reg. Mich. Barnes 209. 28 Car.2. and it is from this delivery, not (6) For the practice on this subject from the sealing, that the writ operates see Tidd's Pradi. K. B. 868, 869. ed. 1. 28 a superfedeas. Meriton v. Stepbens,
1100, 1101. ed. 2.
FREEMAN v. Jackson.
April 26th. n action having been commenced in Hilary Term last, the In an order to
Defendant on the 18th of February obtained an order for a for pleading the month's time to plead, and on the 17th of March another order firft and lafit for three weeks further time.
days are bosh reckoned ina
On the 7th of April the Plaintiff figned judgment for want of
a plea. FREEMAN
Runnington Serjt. now moved for a rule to thew cause why JACKSON. the judgment should not be set aside for irregularity, contending
that it had been signed upon the day on which the time to plead expired; and that though it had been the practice of the Court to consider both the days as inclusive, in computing the time under a rule to plead, yet that under an order to enlarge the time of pleading one of the days should be exclusive.
But the officers of the Court concurring with Adair Serjt. who opposed the motion, that the days were in both instances computed inclusively, the Court held the judgment to have been regularly figned. It was however set aside on terms for the purpose of letting in the merits.
On the next day Runnington endeavoured to revive the question by a similar motion, and was about to cite the case of Kay one &c. Whitehead, 2 H. Bl. 35. to fhew that the judgment was irregularly figned: but was stopped by Buller J. (abfente Eyre Ch. J. and Heath J.) who said, that as the judgment had been already set aside, the Court could not attend to the motion,
whether right or wrong. nápril 271h. 3 Bf.& Pull.
GRIMES v. Naisu. 244. If the damages given by a ver
YHEPHERD Serjt. moved, that the damages amounting to 100l
SHE dict be reduced
which had been found for the Plaintiff in this cause, should by an award ur.. be reduced to 261. pursuant to an award under an order of Nif Nji Prius which Prius which had been made a rule of Court, that the poftea has been made thould be delivered to the Plaintiff, and that the judgment * rule of Court, the party is eri
should be entered for the latter sum. titled ro bave
The Court were of opinion that the learned Serjeant should che portea delivered to hiin
withdraw his motion, the Plaintiff under such circumftances without any ap- being entitled to have the poftca delivered to him without any plication to the Court. application to the Court. (a)
(a) Vid. Higging for v. Nefoilt, onte 97. where the Court gave leave to enter up the judgment without a rule to new cause.
April 27th. 1 Term Rep.
Madox v. Eden. 648. The Court will nor discharge a
OCKELL Serjt. moved to discharge the Defendant out of custody
COCK Defendant on a
on entering a common appearance. The affidavit stated that common appeasance on the ground of infancy,
the action was brought on a promissory note given by the Defendant, who was under age:
But the Court were of opinion, that as his infancy could not unless pleaded (a) exonerate him from the debt, and as it was not certain as yet that he would plead it, it was no ground for the Court to discharge him out of custody.
Cockell took nothing by his motion.
(a) It should seem that this expression having doubts on the subject, referred ic must not be confined to the Defendant's the Judges, ten of whom then present held putring his infancy on record, but that it that it might be so given in evidence. The applies generally to his making it a de. tame doctrine is laid dowa luy Lord Holt, fence; for in Seaten v. Gilbert, 2 Lev. 144. Id. Raym. 389. and is adopted in Bull. Lord Hale permiited infancy to be given N. P., 52. where Gilb. Hift. G. B. 64, 65. in evidence on non
alumpit, and in Darby ed. 2. is referred to. v. Bourber, I Salk. 279.
Treby Ch. j.
TABRUM V. TENANT.
of a fum of money to this Plaintiff and one Lightfoot, ing sued out a which became forfeited, an action was commenced upon the bond, Capios against
, and a Capias ad respondendum issued, and'recognizance of bail taken taken a recogat the suit of Tabrum alone. On discovery of the mistake an
nizance of bail
in his own name original was sued out in the joint names of Tabrum and Light- only, afterwards foot, and an application was made to the Court to allow the Ca- fued out an Orio pias ad respondendum and recognizance of bail to be amended by name of both the original by the infertion of Lightfoot's name as a Co-plaintiff. then applied Le Blane and Marshall Serjts. now shewed cause against a rule to the Court
to amend bora Nih obtained for that purpose, and contended, that this if al
the Capias and lowed would not be a correction of the proceedings in con- recognizance; formity to the writ by which they were commenced, but an
granted the adaptation of them to a new original, the foundation of a new former but reaction; and that it was not a clerical error, nor within the Sta
fused the latcer. tute of Jeofails: they infifted that the bail who had only made themselves responsible for the Defendant in the separate fuit of Tabrum, could not without their consent be bound to discharge the joint demand of Tabrum and Lightfoot ; and that possibly the same bail who were willing to keep the Defendant out of prison, knowing that the Plaintiff had misconceived his action and could not finally recover, would object to engage themselves when, by the correction of that error, they were likely to be damnified.
Shepherd Serjt. in fupport of the rule, urged that stronger inftances of amendments had occurred, as whereanew bill had been filed after judgment to amend a declaration; Marshall v. Riggs, [ 482 ] VOL. I.
2 Str. 1162. or writs of execution had been amended by the previous proceedings; Hunt v. Kendrick, 2 Bl. 836. Laroche v, Wafbrough, 2 Term Rep. 737. and Newnham v. Law, 5 Term Rep. 577. He contended, that at least the Court would permit an amendment of the Capias ad respondendum, if not of the recognizance of bail, which would secure to the Plaintiffs the benefit of the Defendant's appearance; for that though the bail should be discharged, still the having put them in would amount to an appearance, as is the rule in cases where bail are discharged by the Plaintiff's declaring in a different county from that in which they are put in. (a)
Per Curiam. The recognizance cannot be amended, for the bail may not be charged but by their own consent. With respect to the Capias that may be amended by the consent of the Defendant, who will in that cafe be in as good a situation as he is at present ; for if this amendment were refused, a declaration might be delivered at the suit of Tabrum, and immediately afterwards a declaration by the bye at the suit of Tabrum and Lightfoot.
Accordingly that part of the rule which related to the Capias was made absolute by consent (6); and that which related to the recognizance was discharged.
(a) Vid. Yates v. Plantin, 3 Lev. 235.
i) Qu. Whether the Court would not have amended the Capias without the De
fendant's confent? Ste Davis v. Owen, ante 342
SYMONDS et Ux v. COBOURNE.
of that act.
The Court can- A Rule was obtained upon a former day, to fhew cause why an not order an an
annuity bond made to Symonds, by the Defendant Cobourne and nuity bond to be delivered up to another person, should not be delivered up to be cancelled, forwant be cancelled for of a memorial, in pursuance of the annuity act. Anaction had been rial pursuant to commenced on the bond by the Plaintiffs against the Defendant. 17 Geo. 3. 6. 26.,
Le Blanc now shewed caufe, infifting that by the first clause though it be void by the Ift section of the act the bond was merely void, and that the cases where Quare, Whether
the Court interfered by ordering deeds, &c. to be delivered up to in such a cafe be cancelled, were founded on the 4th section of the act. (a) they would tay EYRE Ch.J. The motion should have been to ftay proceedproceedings on the bond ings: perhaps that might not have been granted, but the De
fendant put to plead the circumstances. However, as no ftay of proceedings is prayed by this motion, the rule muft be discharged. Per Curiam,
Rule discharged. () See the form in which the rule was Rep. 253.; alfo Ex parte Anfell, anfo 66, in made absolute in Delmerv.Barnard, 7 Torm the note.
CAPADOSE V. CODNOR.
certificate of re
TR "ROVER for the ship Castor and Pollux. At the trial before The indorse
Eyre Ch. J. it appeared that the ship having been built in ments on the the year 1790, was transferred by the builders to the present giftry required Defendant under the grand bill of fale, when a certificate of by 7 & 8 6:3. British regiftry was obtained by the Defendant for himself as Geo. 3. c. 60. owner and master, and several voyages in her were performed for his need not be by him as fuch; that in 1791 the Defendant having had con- deed of affignfiderable dealings with G. Lempriere, a merchant in London, under 7. 19.06 and being then indebted and likely to become more so to him, the latter act. affigned the Castor and Pollur by way of security, and delivered poffeffion of the grand bill of sale ; that in the deed of assignment the certificate of the registry of the ship was truly and accurately recited in words at length, pursuant to the directions of 26 Geo.3. c.60. f. 17. ; that on the 3d of April 1792 G. Lempriere, in confequence of some transactions by which he became indebted to the Plaintiff, executed to him an indenture, which after reciting the aflignment from the Defendant, and the debt due from him to G. Lempriere as well as that from G. Lempriere to the Plaintiff, affigued G. Lempriere's interest in the thip to the latter, fubject to redemption on payment of the money due on the ad of July following; that in this assignment as in the former, the certificate of the ship's registry was truly and accurately set forth; that at this time the Defendant was on a voyage with the fhip and acting as mafter, and that previous to his return G. Lempriere having become bankrupt, he refused (a) to deliver up the ship to the Plaintiff. The objection stated at the trial to the Plaintiff's recovery, was, that neither in the aflignment to Lempriere nor in that to the Plaintiff was there any recital of such indorsement of thechange of property madeon the certificate of regiftry, as was originally required by 7 & 8 W.3. C.22. (6)
(a) This vas in consequence of an in- Rolls ftrongly inclined in favour of the demnity given him by the house of De Fiott present Plaintiff
, but fuggefted the objection and Co., to whom G. Lewpriere was also in- noiv made, and retained the bill for a year, debted. On the Defendant's refusal ibe thip in order that the question might be tried as was arrested by admiralty procels, at the law. suit of the Plaintiff; and in consequence the (b) The 21 it feet. of 7 & 8 W. 3. c. 22. Defendant filed a bill in Chancery against enaĉis that in case there be any alteration the Plaintiff, the assignees of G. Lempriere, “ of property in the same fort, by the fale and De Fiott and Co. as amicable Defend- " of one or more shares in any mip after rea ents; on the hearing the Master of the “gistering thereof, such fale shall always be