the allowance, he might wait for any length of time, till execution had been iffued, and then harafs the party by serving him with the allowance and putting in bail, by which the execution would be fuperfeded.

Le Blanc in fupport of the rule. The cafe of Jaques v. Nixon is diftinguishable from this; for there the writ of error was allowed, and the allowance ferved before final judgment, and bail was put in within four days after the judgment; but fince bail could not poffibly be put in until after judgment, and as the fervice and allowance were fufpended 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 fuperfedeas commenced from the allowance or the fervice.

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 Bof. & Pull. of error previous to the judgment being figned; but that is an 137. 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 wuft then elapfe before the party figning it can safely fue out execution. But if the writ of error be allowed after judgment has been figned, the party entitled cannot regularly fue out execution until four days after the allowance.

BULLER J. Two things are requifite to make a writ of error a fuperfedeas 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,

(a) That is after delivery of the writ to the clerk of the errors. Reg. Mich. 28 Car. 2. and it is from this delivery, not from the fealing, that the writ operates as a Superfedeas. Meriton v. Stephens,

A

Rule difcharged (b).

Barnes 205. ed. 3. and Sykes v. Dawson,
Barnes 209.

(b) For the practice on this fubject
fee Tidd's Praß. K. B. 868, 869. ed. 1.
1100, 1101. ed. 2.

FREEMAN V. JACKSON.

April 26th.

In an order to a for pleading the enlarge the time

N action having been commenced in Hilary Term laft, the Defendant on the 18th of February obtained an order for month's time to plead, and on the 17th of March another order first and laft for three weeks further time.

days are both reckoned inOn clufively.

If the damages

given by a verdict be reduced

by an award unNifi Prins which has been made

der an order of

a rule of Court, the

party is et

titled to have

the poftea delivered to him

On the 7th of April the Plaintiff figned judgment for want of a plea.

Runnington Serjt. now moved for a rule to fhew caufe why the judgment fhould not be set aside for irregularity, contending that it had been figned upon the day on which the time to plead expired; and that though it had been the practice of the Court to confider both the days as inclufive, in computing the time under a rule to plead, yet that under an order to enlarge the time of pleading one of the days fhould be exclusive.

But the officers of the Court concurring with Adair Serjt. who oppofed the motion, that the days were in both inftances computed inclufively, the Court held the judgment to have been regularly figned. It was however fet afide on terms for the purpose of letting in the merits.

On the next day Runnington endeavoured to revive the queftion by a fimilar motion, and was about to cite the cafe of Kay one &c. Whitehead, 2 H. Bl. 35. to fhew that the judgment was irregularly figned: but was ftopped by Buller J. (abfente Eyre Ch. J. and Heath J.) who faid, that as the judgment had been already fet afide, the Court could not attend to the motion, whether right or wrong.

SHEPE

GRIMES V. NAISH.

HEPHERD Serjt. moved, that the damages amounting to 100% which had been found for the Plaintiff in this caufe, fhould be reduced to 261. pursuant to an award under an order of Nif Prius which had been made a rule of Court, that the poftea fhould be delivered to the Plaintiff, and that the judgment fhould be entered for the latter fum.

The Court were of opinion that the learned Serjeant should withdraw his motion, the Plaintiff under fuch circumftances without any ap- being entitled to have the poftea delivered to him without any application to the Court. (a)

plication to the

Court.

(a) Vid. Higging fon v. Nefbilt, ante 97. where the Court gave leave to enter up the judgment without a rule to fhew caufe.

COCKELL

MADOX v. EDEN.

OCKELL Serjt. moved to difcharge the Defendant out of cuftody on entering a common appearance. The affidavit ftated that

ance on the ground of infancy.

the

the action was brought on a promiffory 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 feem that this expreffion muft not be confined to the Defendant's putting his infancy on record, but that it applies generally to his making it a defence; for in Seaton v. Gilbert, 2 Lev. 144. Lord Hale permitted infancy to be given in evidence on non affumpfit, and in Darby v. Boucher, 1 Salk. 279. Treby Ch. J.

having doubts on the subject, referred it
the Judges, ten of whom then present held
that it might be fo given in evidence. The
fame doctrine is laid down by Lord Holt,
Ld. Raym. 389. and is adopted in Bull.
N. P., 52. where Gill. Hift. C. B. 64, 65.
ed. 2. is referred to.

TABRUM V. TENANT.

THE
HE Defendant having entered into a bond for the payment
of a fum of money to this Plaintiff and one Lightfoot,
which became forfeited, an action was commenced upon the bond,
a Capias ad refpondendum iffued, and recognizance of bail taken
at the fuit of Tabrum alone. On difcovery of the mistake an
original was fued out in the joint names of Tabrum and Light-
foot, and an application was made to the Court to allow the Ca-
pias ad refpondendum and recognizance of bail to be amended by
the original by the infertion of Lightfoot's name as a Co-plaintiff.
Le Blanc and Marshall Serjts. now fhewed cause againft a rule
Nif obtained for that purpose, and contended, that this if al-
lowed would not be a correction of the proceedings in con-
formity to the writ by which they were commenced, but an
adaptation of them to a new original, the foundation of a new
action; and that it was not a clerical error, nor within the Sta-
tute of Jeofails: they infifted that the bail who had only made
themselves refponfible for the Defendant in the separate fuit of
Tabrum, could not without their confent be bound to discharge
the joint demand of Tabrum and Lightfoot; and that poffibly the
fame bail who were willing to keep the Defendant out of prison,
knowing that the Plaintiff had mifconceived his action and could
not finally recover, would object to engage themfelves when,
by the correction of that error, they were likely to be damnified.

Shepherd Serjt. in fupport of the rule, urged that ftronger inftances of amendments had occurred, as where a new bill had been filed after judgment to amend a declaration; Marshall v. Riggs, [ 482 ] 2 Str.

VOL. I.

I I

1796.

TABRUM

V.

TENANT.

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 refpondendum, if not of the recognizance of bail, which would fecure to the Plaintiffs the benefit of the Defendant's appearance; for that though the bail should be discharged, ftill the having put them in would amount to an appearance, as is the rule in cafes 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 confent. With respect to the Capias that may be amended by the confent of the Defendant, who will in that cafe be in as good a fituation as he is at prefent; for if this amendment were refused, a declaration might be delivered at the fuit of Tabrum, and immediately afterwards a declaration by the bye at the fuit of Tabrum and Lightfoot.

Accordingly that part of the rule which related to the Capias was made abfolute by confent (b); and that which related to the recognizance was discharged.

(a) Vid. Yates v. Plantin, 3 Lev. 235.
(6) Qu. Whether the Court would not
have amended the Capias without the De-

fendant's confent? See Davis v. Owen, ante 342.

April 28th.

The Court cannot order an allnuity bond to be delivered up to be cancelled for want of a memo

rial purfuant to 17 Geo. 3. c. 26., though it be void by the Ift fection

of that act. Quare, Whether in fuch a cafe they would stay proceedings on the bond?

A

SYMONDS et Ux v. COBOURNE.

RULE was obtained upon a former day, to fhew caufe why an annuity bond made to Symonds, by the Defendant Cobourne and another perfon, should not be delivered up to be cancelled, for want of a memorial, in pursuance of the annuity act. An action had been commenced on the bond by the Plaintiffs against the Defendant. Le Blanc now fhewed cause, infifting that by the first clause of the act the bond was merely void, and that the cafes where the Court interfered by ordering deeds, &c. to be delivered up to be cancelled, were founded on the 4th fection of the act. (a)

EYRE Ch. J. The motion fhould have been to ftay proceedings: perhaps that might not have been granted, but the Defendant put to plead the circumftances. However, as no ftay of proceedings is prayed by this motion, the rule must be discharged, Per Curiam, Rule discharged.

(a) See the form in which the rule was made abfolute in Dalmer v. Barnard, 7 Term

Rep. 253. ; alio Ex parte Anfell, ante 66, in the note.

T

CAPADOSE v. Codnor.

ROVER for the fhip Caftor and Pollux. At the trial before Eyre Ch. J. it appeared that the ship having been built in the year 1790, was transferred by the builders to the prefent Defendant under the grand bill of fale, when a certificate of British registry was obtained by the Defendant for himself as owner and maiter, and feveral voyages in her were performed by him as fuch; that in 1791 the Defendant having had confiderable dealings with G. Lempriere, a merchant in London, and being then indebted and likely to become more fo to him, affigned the Castor and Pollux by way of fecurity, and delivered poffeffion of the grand bill of sale; that in the deed of affignment the certificate of the registry of the fhip was truly and accurately recited in words at length, pursuant to the directions of 26 Geo.3. c. 60..17.; that on the 3d of April 1792 G. Lempriere, in confequence of fome tranfactions by which he became indebted to the Plaintiff, executed to him an indenture, which after reciting the affignment from the Defendant, and the debt due from him to G. Lempriere as well as that from G. Lempriere to the Plaintiff, affigned G. Lempriere's intereft in the fhip to the latter, fubject to redemption on payment of the money due on the 2d of July following; that in this affignment as in the former, the certificate of the fhip's regiftry was truly and accurately fet 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 affignment to Lempriere nor in that to the Plaintiff was there any recital of fuch indorsement of the change of property made on the certificate of registry, as was originally required by 7 & 8 W.3. c. 22. (b) and

Rolls ftrongly inclined in favour of the
prefent Plaintiff, but suggested the objection
now made, and retained the bill for a year,
in order that the question might be tried at
law.

(a) This was in confequence of an indemnity given him by the house of De Fiott and Co.,to whom G. Lempriere was alfo indebted. On the Defendant's refufal the ship was arrested by admiralty proces, at the fuit of the Plaintiff; and in confequence the (b) The 21ft fect. of 7 & 8 W. 3. c. 22. Defendant filed a bill in Chancery against enacts that "in cafe there be any alteration the Plaintiff, the affignees of G. Lempriere," of property in the fame port, by the fale and De Fiott and Co. as amicable Defend-" of one or more shares in any ship after reants; on the hearing the Mafter of the "giftering thereof, such fale fhall always be " acknow

II 2