this inconvenience might result from it, that, in country cases (as to which no distinction is made), the bail might render on the eighth day in Yorkshire, and the plaintiff might, in ignorance of that fact, obtain leave on the ninth day to sign judgment, which must be afterwards set aside. It has been said to be the intention of the new rule that the bail should have notice of the proceedings (a); but no notice is prescribed; and, if it is to be understood that reasonable notice shall be given, that must vary with circumstances, and there can be no constant regulation. It may be contended that there ought, at least, to be such notice as will enable the bail to render by the return of the sci. fa.; but the rule makes no such provision; and, where a summons is necessary, it may be served on the very day of the return, at any time before the rising of the Court; Clarke v. Bradshaw (b), Lewis v. Pine (c). Busby, contrà. This render was made in a reasonable time under the circumstances; and such time ought to be allowed. It was not the object of the rule to lay any additional pressure on bail. The intention was to substitute, for a second sci. fa., the interval of eight days before signing judgment, in cases where there was no summons. If this be not the effect of the rule, and the bail are at all events fixed on the return of the sci. fa., no object can be assigned for the eight days' delay. As was suggested by the learned Judge who referred this case to the Court, there is an analogy between the present rule and Reg. Gen. Trin. (a) See Wimall v. Cook, 2 Dowl. P. C. 173. Jervis's New Rules, p. 64. note (e), 3d ed. 1837. SANDERSON against BROWN. 1837. SANDERSON against BROWN. 3 W. 4. III. (a), which directs that, when bail are sued in debt on the recognisance, they shall be at liberty to render at any time within fourteen days next after the service of process; and, on such render, and notice thereof, proceedings shall be stayed on payment of the costs of the writ and service. In this case a render, in itself regular, has been made without any unnecessary delay Thorne v. Hutchinson (b) shews that in such a case the Court will not deal strictly with the bail. Cur. adv. vult. Lord DENMAN C. J. now delivered the judgment of the Court. This was an application to enter an exoneretur on the bail-piece. The plaintiff proceeded by scire facias against the bail, who lived in Yorkshire. The writ was returnable on the 19th of November. The bail had notice in Yorkshire on the 18th, and the defendant was rendered on the 24th. The question turns on the rule of Hil. T. 2 W. 4., I. 81. (c). Before and since that rule, if the bail be summoned (which can only be in Middlesex, where the scire facias must be brought), the defendant must be rendered before the shutting of the office on the day of the return of one scire facias. Where the bail reside elsewhere, the practice of suing out two writs of scire facias is done away by the above rule, and an application to the Court or a Judge, after eight days from the return of one writ, for leave to sign judgment, is substituted. Before such leave is given, it must be proved that notice has been given to the bail, or that proper (a) 5 B. & Ad. 468. (b) 3 B. & C. 112. endeavours endeavours to do so have been made without effect. The object of that notice is to enable the bail to render the defendant; and accordingly it is stated, in a note to Mr. Jervis's New Rules, p. 65., that Bayley B., in a case of Newton v. Flight (a), MS., 23d June 1832, at chambers, held that, where no notice had been given, a render fourteen days after the return of the writ was in time. Here, notice was given in Yorkshire the day before the return of the writ; but that notice is not the same thing as a summons in Middlesex. It would have entitled the plaintiff to obtain leave to sign judgment after eight days from the return-day, if nothing had been done in the meantime; but we are of opinion that those eight days were given for the very purpose of enabling bail to render, though the rule is not confined to proceedings against bail. It would be very strange if it were otherwise: for then the bail would be placed in a worse situation by the rule in question than they were before; and, if the plaintiff proceeds by action, they have fourteen days from the service of the writ to render, by Rule III. Trinity term, 3 W. 4. (b). For these reasons, we think that the present rule must be made absolute. 1837. SANDERSON against BROWN. 1837. Monday, The KING against The Poor Law Commissioners for ENGLAND and WALES. the NEWPORT Union. In the Matter of This case is reported, 6 A. & E. 54. Monday, The KING against HEWITT. This case is reported, 6 A. & E. 547. note (a). Monday, Under stat. 23 H. 8. c. 5. 8. S., and a commission framed according to it, a sewer's rate assessed in gross on a township at large is bad, though laid only for defraying the expenses of the commission, and though EMMERSON against SALTMARSHE and Others. REPLEVIN. The defendants avowed and made cognisance under the authority of the commissioners of sewers. On the trial before Parke B., at the York Spring assizes, 1835, a verdict was found for the plaintiff, subject to a case, which, so far as is material to the point decided, was as follows. The plaintiff was, at the time of making the distress, constable of the township of Elvington; and was and had been, for fourteen years previously, the occupier of about forty-four acres of land in that township. One defendant was bailiff of the other defendants, who are so assessed, and commissioners of sewers, appointed by his Majesty's the rate has been, in pre vious instances, submitted to by the township commission, dated 12th of July, 1833, for Howdenshire in question. and the west parts of the East Riding of Yorkshire, within which Elvington is situate. The The commission, granted under stat. 23 H. 8. c. 5., recited, that the walls, ditches, &c., sewers, &c., bridges, streams, and other defences by the coasts of the sea and marsh grounds in the East Riding, viz. for Howdenshire, &c. (setting out certain limits), by rage of the sea, &c., and by means of the trenches of fresh water descending, &c., were dirupt, lacerate, &c., with other impediments, annoyances, and defaults, specified; and it assigned commissioners, including the defendants, or any six of them, with a quorum of three, to survey the said walls, &c., to cause the annoyances to be corrected, "as also to inquire by the oaths of the honest and lawful men of our said county, place, or places where such defaults or annoyances be, as well within the liberties as without, by whom the truth may the rather be known, through whose default the said hurts and damages have happened, and who hath or holdeth any lands or tenements, or common of pasture, or profit of fishing, or hath or may have any hurt, loss, or disadvantage by any manner of means in the said places, as well near to the said dangers, lets, and impediments, as inhabiting or dwelling thereabouts by the said walls," &c., "and other the said impediments and annoyances; and all those persons, and every of them, to tax, assess, charge, distrain, and punish, as well within the metes, limits, and bounds, of old time accustomed, or otherwise or elsewhere within this our realm, after the quantity of their lands, tenements, and rents, by the number of acres and perches, after the rate of every person's portion, tenure, or profit, or after the quantity of their common of pasture, or profit of fishing, or other commodities there, by such ways and means, and in such manner and form, as to you, or six of you (whereof we will that three of you of the quorum shall 1837. EMMERSON against SALTMARSHE. |