1832. In trespass against the sheriff and an execution credi claimed as assignees under a joint commission against 4. and B., the plaintiffs, in BERNASCONI and Others against FAREBROTHer, TRESPASS against the sheriff and an execution creditor of A. H. Chambers the elder for taking the tor for seizing plaintiffs' goods. (See the pleadings, 10 B. & C. 549.) goods of A., At the trial before Lord Tenterden C. J., at the Middlewhich the plaintiff's sex sittings after Hilary term 1831, it appeared that the plaintiff's claimed the goods of A. H. Chambers now in question under an assignment made to them by virtue of a commission of bankruptcy issued against A. H. Chambers the elder and A. H. Chambers the younger. evidence of acts To prove the bankruptcy of Chambers junior, they gave evidence to shew that he had applied for protection under the commission issued against him and his father; that he had called meetings of the commissioners earlier than usual; and that he had solicited creditors, and otherwise endeavoured to obtain his certificate. The support of the joint commis sion, gave and declar ations of B., for the purpose of shewing that he had become bankrupt. Held, that this evidence was inadmissible: And that the Court, in granting a new trial on this ground, evidence was objected to. A verdict having passed for the plaintiffs, a rule nisi was obtained for a new trial, could not limit on the ground that these acts of Chambers junior, who was not a party, or identified in interest with any party, to the record, were not admissible in evidence in the present action. the enquiry on such second trial to the question of B.'s bankruptcy; for that in cases where a bill of exceptions might be ten dered, but an Sir James Scarlett and F. Pollock, on a former day in application for this term, shewed cause, and contended that the acts done by Chambers junior were admissible, as part of the a new trial is made instead, the new trial cannot be re must be granted res gesta. Assuming they were not, the Court, if they generally, and grant a new trial, will restrain the enquiry to the single question, whether Chambers junior committed an act of bankruptcy? strained to a particular point. Campbell Campbell and Butt contrà. The action was brought to try the validity of a joint commission against Chambers the elder and Chambers the younger: the act of bankruptcy of Chambers junior was denied on the trial, and it was contended, that no such act was proved. There is no connection between the sheriff and Chambers jun. The defendants justify taking the goods of the elder Chambers under a judgment obtained against him separately. The commission under which the plaintiffs claim being a joint commission against the two, it was necessary, in order to support that commission, to prove an act of bankruptcy by Chambers junior; and his declarations or acts after the commission issued cannot, as against the present defendants, dispense with such proof. There ought, therefore, to be a new trial; and if granted, it must be upon the whole matter. Cur. adv. vult. Lord TENTERDEN C. J. now delivered the judgment of the Court. We have considered the subject, and think that the evidence was improperly received. That being so, we have considered also whether we could limit the enquiry upon the new trial to one point. In Hutchinson v. Piper (a), Gibbs C. J. lays it down, that in certain cases, of which he gives instances, a new trial may be restrained to one point. But in the particular case now before the Court, the objection which arose as to the admissibility of the evidence might have been taken by bill of exceptions. The application for a new trial was substituted for a bill of exceptions. Now, if there had been a bill of exceptions in this case, and the judgment were that the evidence had been improperly received, the (a) 4 Taunt. 555. court 1832. BERNASCONI against FAREBROTHER. 1832. BERNASCONI against FAREBROTHER. court of error could only have awarded a venire de novo, sending the whole to a new trial: and as the application for a new trial is substituted for a bill of exceptions, we think that, by analogy to that proceeding, the defendants are entitled to a new trial generally. Rule absolute. 84&E 196 REGULÆ GENERALES. Hilary Term, 2 W. 4. I. WHEREAS it is expedient that the practice of the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, should, as far as possible, be rendered uniform: IT IS ORDERED, That the practice to be observed in the said Courts, with respect to the matters hereinafter mentioned, shall be as follows; that is to say, AUTHORITY TO PROSECUTE OR DEFEND. 1. Warrants of attorney to prosecute or defend, shall not be entered on distinct rolls, but on the top of the issue roll. 2. A special admission of prochein amy or guardiar, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified. AFFIDAVIT. 3. No affidavit of the service of process shall be deemed sufficient if made before the plaintiff's own attorney, or his clerk. 4. An 1832. 4. An affidavit sworn before a Judge of any of the Courts of King's Bench, Common Pleas, or Exchequer, shall be received in the Court to which such Judge be- 62-806 longs, though not entitled of that Court; but not in 9a2.2.27%. any other Court, unless entitled of the Court in which it is to be used. 5. The addition of every person making an affidavit shall be inserted therein. 6. Where an agent in town, or an attorney in the country is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received; and an affidavit sworn before an attorney's clerk shall not be received in cases where it would not be receivable if sworn before the attorney himself; but this rule shall not extend to affidavits to hold to bail. ARREST. 7. After non pros, nonsuit or discontinuance, the defendant shall not be arrested a second time without the order of a Judge. 8. Affidavits to hold to bail for money paid to the use of the defendant, or for work and labour done, shall not be deemed sufficient unless they state the money to have been paid, or the work and labour to have been done, at the request of the defendant. 9. No supplemental affidavit shall be allowed to supply any deficiency in the affidavit to hold to bail. 10. A variance between the ac etiam and the declaration, or the want of an ac etiam, where the defendant is arrested, shall not be deemed ground for discharging the defendant, or the bail; but the bail bond or recognizance of bail shall be taken with a penalty or sum of forty pounds only. 1832. 988-972 WRIT, WHEN AND HOW TO BE Filed. 11. When the rule to return a writ expires in vacation, the sheriff shall file the writ at the expiration of the rule, or as soon after as the office shall be open. 12. And the officer with whom it is filed shall endorse the day and hour when it was filed. BAIL. 13. If any person put in as bail to the action, except for the purpose of rendering only, be a practising attorney, or clerk to a practising attorney, the plaintiff may treat the bail as a nullity, and sue upon the bail bond as soon as the time for putting in bail has expired, unless good bail be duly put in in the mean time. 14. In the case of country bail, the bail piece shall be transmitted and filed within eight days, unless the defendant reside more than forty miles from London, and in that case, within fifteen days after the taking thereof. 15. When bail to the sheriff become bail to the action, the plaintiff may except to them though he has taken an assignment of the bail bond. 16. It shall be sufficient, in all cases, if notice of justification of bail be given two days before the time of justification. 17. If bail, either to the action or in error, are excepted to in vacation, and the notice of exception require them to justify before a Judge, the bail shall justify within four days from the time of such notice, otherwise on the first day of the ensuing term. 18. Notice of more bail than two shall be deemed irregular, unless by order of the Court or a Judge. 19. Affidavits of justification shall be deemed insufficient, unless they state that each person justifying is worth |