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Lord Chief Justice DALLAS.-The affidavit to hold to bail in this case, was against the defendant Walker and four others; and the plaintiff declared against them all : but the writ under which Walker was arrested, was against him only. It is quite clear, that if several persons be jointly indebted to a plaintiff, he may cause one of them to be arrested, and issue serviceable process against the others. Here, too, it appears, that the bail-piece followed the writ, which was against the defendant Walker alone. I therefore think there is no ground for this application.
Mr. Justice PARK-I am of the same opinion. By the practice of this Court, the names of four defendants only can be inserted in one writ; and in the case of a privileged person, if he be joined with others, the plaintiff has his option of arresting the latter, as he can only obtain bail from them.
Mr.Justice BURROUGH.-Here the bail-piece followed the writ, which was strictly regular. It is quite clear • that if four defendants be named in one writ, the plaintiff
may cause some or one of them to be served with common process, and the others arrested.
It also appears that the declaration is consistent with the affidavit to hold to bail, as it includes the names of all the persons against whom it was made.
The learned Serjeant therefore took nothing by bis motion.
ADAMS v. STATON.
Nov. 15th. Mr. Serjeant Vaughan applied for a rule nisi, that the Where the
plaintiff's atProthonotary might review his taxation in this cause; on torney had been an affidavit which stated that the action was brought misconduct toagainst the defendant, as the drawer of a bill of exchange; wards the de
fendant, in that time had been given bim by the plaintiff for pay, consequence of
which, thc Proment after it became due; that he was afterwards sued
thonotary on it, when he took out a summons to stay proceedings' refused to al
low the plainin the action on payment of the debt and costs; and that tiff any costs, on the attendance of the parties before the Prothonotary, fused a rule for he had refused to allow the plaintiff any costs. Under him to review these circumstances, the learned Serjeant submitted, that although the
defendant had as the defendant had admitted his liability to pay debt taken out a and costs, by having taken out the summons for that
stay proceedpurpose, the plaintiff was, at all events, entitled to some ings in the ac
tion, on paycosls, whatever the facts might be.
ment of debt and costs.
The Court called on Mr. Prothonotary Watlington to state on what grounds he had refused the plaintiff any costs; who observed, that he had always understood it. to be the principle, that in cases of this description it was within his province to ascertain and determ'ine what: costs a party might be fairly entitled to; and that under the peculiar circumstances of the present, he had considered that the plaintiff was entitled to none. The action was brought on a bill of exchange for 221., of which the defendant was the drawer ; that on being applied to for payment, shortly after it became due, he called on the plaintiff's attorney, and paid part of it; and the latter, by letter, gave him until the 11th October last to pay the residue. The defendant contended, that he had till three o'clock on that day to pay it; and a meinorandum was produced before me to that effect. The plain
tiff's attorney admitted that he had allowed him until eleven. It further appeared, that at half-past eleven on that day, the defendant went to the attorney's office to pay the residue; that the latter refused to see him, although he was at home, but sent bim word by one of his clerks, that he must call on the following day. He did so; when he found that three writs had been issued, one against himself, and two others against the acceptor and indorser of the bill, the costs of the whole of which the plaintiff's attorney claimed on attending the summons. That he, the Prothonotary, had refused to allow any of those costs; and more particularly so, as it did not appear that the plaintiff's attorney had informed the defendant that he intended to sue out any writ when he called on him, and refused to see him on the preceding day.
The Court animadverted most severely on this mode of proceeding; and observed, that in future, if any similar instance should come before them, they would visit the attorney with the punishment he deserved. That a great confidence was placed in attornies by their clients; and that it was a most daring and presumptuous application; and more particularly so, as it embraced a complaint against the officer of the Court, who, under the circumstances, had acted most properly, and with his usual discretion.
Master, Clerk, v. MILNER.
Nov. 15th. This was an action of debt on the statute 2 and 3 Ed- Where the
plaintiff, in a ward 6, c. 13, for not setting out the tithes of turnips
special jury and potatoes; and in the last Easter Term, the defendant cause for not
setting out had obtained a rule for judgment as in case of a non- tithes, was suit, which was discharged on the usual terms of a per- emptory underemptory undertaking to try at the next assizes. The taking to try at
the next asvenue was laid at Chester; and on the cause, for which a sizes, the ab
sence of eleven special jury had been appointed, coming on to be tried special jarors is there, at the last assizes, one only of the special jurors son for his was in attendance, who was sworn accordingly. A tales clining to pro
ceed with the was then prayed, and four of the talesmen also sworn; trial, although
a tales had been when it was objected for the plaintiff, that he was not, prayed, and under the circumstances, bound to proceed ; and his part of the
talesmen sworn; counsel declined to do so.
and the Court discharged a
rule for judgMr. Serjeant Hullock, on a former day in this Term, ment as in again obtained a rule, calling on the plaintiff to shew suit, on the
plaintiffsgiving cause why a like judgment should not be entered up as a fresh peremp
tory undertakin case of a nonsuit.
ing to try at the
ensuing assizes. Mr. Serjeant Taddy now shewed cause, and submitted, that in an action of this nature, where the question was, whether certain lands could be considered as barren ground within the statute of Edw. 6., and in which the right of the plaintiff, as vicar, was also disputed ; the absence of eleven special jurors was a sufficient reason for his declining to try the cause.
On his offering to give a fresh peremptory undertaking to try at the next assizes, the Court ordered the rule to be
BURR v. CREETHY.
Mr. Serjeant Vaughan, on a former day in this Term, plaintiff had
moved that a rule obtained by the plaintiff, calling on taken the goods of the defend the late Sheriff of Middleser to return a writ issued by ant in execution, which le the plaintiff against the defendant in this cause, might withdrew on the latter's
be discharged. He founded his motion on an affidavit consenting that of the sheriff's officer, who stated that he had taken the there should be a fresh levy if defendant's goods in execution, under a fieri fucias, isthe debt were not paid on a sued against him at the suit of the plaintiff: that he given day, and that the war
continued in possession until the plaintiff ordered him to rant should re- withdraw, he having received a consent in writing from main in the hands of the the defendant, that the officer might levy again, if the officor for that
amount of the debt should not be paid on a given day; purpose ; and the defendant's and that the warrant was to remain in his hands for that goods having been seised
purpose. That the defendant's goods were afterwards under a subse. quent execu- seized by another officer under a fresh execution, at the tion by another suit of another creditor, on which the plaintiff's officer creditor, and the plaintiffs re-entered, and gave his warrant to the officer then in his warrant in possession, and with whom he left it for the
of the hands of the officer un
a fresh levy. That the defendant afterwards became der that exécu. bankrupt; and the officer in possession under the second tion, and the defendant af. execution, after it had been satisfied, delivered up the terwards became bankrupt, residue of the goods to his assignees, without satisfying and the residue the execution put in at the suit of the plaintiff, who were delivered thereupon ruled the sheriff to return the writ. The sigpecs, after learned Serjeant contended, that under these circumsatisfying the
stances the sheriff was not bound to do so, as he was second execution, to the ex• excused by the plaintiff's own act, he having consented plaintiff, who to withdraw the original execution. He thereby not called on the sheriff to return only postponed his claim, but gave the second party a the writ; the priority; and the defendant having become a bankrupt the return to be in the mean time, he consented that the residue of the efenlarged until he was indemnified by the proper parties to the satisfaction of the Prothonotary,
over to the as