1822.

BAILEY V. BAILEY.

THIS was an action of replevin, in which a verdict had been taken for the plaintiff, subject to the award of an arbitrator, and one of the sureties in the replevin bond being a material witness for the plaintiff :—

ap

Tuesday, Nov. 26th.

where one of the sureties to a replevin bond was a

material wit ness for the plaintiff in the cause, the

Court allowed substituted in

another to be

his stead, on

his being approved of by

the Prothono

tary, and giving

the defendant's attorney notice

fore him to sanction such approval; as in case the surety so substituted should be in

Mr. Serjeant Hullock, on a former day in this Term, obtained a rule, calling on the Sheriff of Middlesex to shew cause, why he should not release one of the sureties named in the replevin bond from all his liability thereon, upon the sheriff or his under sheriff being tendered a new and another replevin bond, with the usual condition, in which the plaintiff and two other sufficient sureties to appear beshould be obligors to the sheriff, on their being first proved of by one of the Prothonotaries of the Court. It appeared that the plaintiff and one of the sureties to the former bond, together with another person who was to be substituted in lieu of the other, as well as the sheriff, attended before the Prothonotary, when he thought that the attendance of the defendant was necessary, as in the surety tendered should be insufficient, the defendant would be deprived of the advantage of suing the sheriff, in case he should be driven to his remedy on the bond.

case

Mr. Serjeant Hullock now submitted that the attendance of the defendant was altogether unnecessary. He was not to be indemnified by the bond. The only object of the rule was, that the sheriff should suffer no inconvenience, and that the Prothonotary might be satisfied as to the sufficiency of the new surety; and it appears that the sheriff attended before him, and was perfectly satisfied as to the person intended to be substituted for the former surety; and it was therefore even unnecessary to make the defendant a party to the rule.

sufficient, the would be deremedy against

defendant

the sheriff on the bond.

1822. BAILEY

V.

BAILEY.

Mr. Prothonotary Watlington stated, that on the attendance of the parties before him, he did not know whether the new surety was responsible or not, and that he refused to insert his name in the bond, as the defendant did not attend him, and as it did not appear that he had consented to the substitution. That he thought the defendant ought to have given his assent, as the bond might be afterwards assigned to him. Besides, the sheriff remarked, that as the Court had released him from the former bond by the substitution of another, in which a new surety was introduced, it would exonerate him from his liability in case it should turn out that he was insufficient.

The Court observed, that the sheriff was primarily liable if he had taken insufficient sureties on the original bond; and that as one surety was released and another substituted by their order, the defendant would be deprived of his remedy against the sheriff, in case the latter should turn out to be insufficient. The Prothonotary and the defendant should both have been satisfied as to his sufficiency, and there will be no difficulty whatever in giving the defendant's attorney notice to attend before the Prothonotary. They therefore ordered the rule to be amended, by making the defendant a party to it, and directed it to be served on his attorney.

Wednesday,

Nov. 27th.

not allow a

TIBBETT v. PERRING.

The Court will MR. Serjeant Cross moved for a concilium, and that special demur- this case might be set down for argument to-morrow. He stated, that the action was brought against the defendant as acceptor of a bill of exchange, to which a

rer to be argued on the

last day of

Term, on a

statement by counsel that it is only a sham demurrer, and brought for the mere urpose of delay.

special demurrer had been filed, the grounds of which were altogether specious, and framed for the mere purpose of delay. He referred to Impey's Practice (a), where it is said, that "if a sham demurrer be delivered nearly at the end of the Term, the Court will, when a concilium is moved for, give the last day of Term to argue the same, on its being mentioned by the Serjeant."

But the Court observed, that they could not assume that it was a sham demurrer, or filed for the mere purpose of delay that there was no affidavit to shew it was not intended to be argued, or that it was a sham demurrer; and that the practice of the Court could not be expedited by a motion of this description. Besides, the paper books must be delivered two days before the day on which the cause shall have been set down for argument, and the Court are not to assume that it is a sham demurrer on a mere statement of counsel.

The learned Serjeant therefore took nothing by his motion.

1822.

TIBBETT

v.

PERRING.

(a) C. P. 6th edit. page 290.

THIS

DowSE v. GARETT.

Thursday, Nov. 28th.

fendant, an

The first innkeeper,

was

contracted with a coach

was an action of assumpsit brought by the plain- Where the detiff, as a farmer of the post-horse duties. count of the declaration stated, that the defendant indebted to him as such, for certain duties due to him from the defendant, for and in respect of divers horses,

proprietor to

furnish him

with two addi

tional horses

to assist in dragging a stage coach carrying the mail up a hill about three quarters of a mile in length in the course of each journey, and for which he was to receive a guinea per week :-Held, that such horses were not subject to the post-horse duty under either of the statutes imposing such duty, as the stage-coach duty is to be regulated by the number of passengers each coach is licensed to carry, and not on the horses employed to draw it.

442

1822.

DOWSE

V.

GARETT.

&c. let to hire by the mile, to be used, and used in travelling in Great Britain, within the district for which the plaintiff was farmer. There were also other counts for horses let to hire by the stage, to be used in travelling in Great Britain, within the district for which the plaintiff was farmer: and for horses let to hire for a less period than twenty-eight successive days for drawing, and used in drawing on public roads, carriages used for travelling post or otherwise, where the distance at the time of the hiring was ascertained: and for horses let to hire for a less period than twenty-eight successive days, for drawing carriages on public roads, used for travelling post or otherwise, where the distance was not ascertained at the time of the hiring: and also a general count for duties on horses let to hire, to be used in travelling; to which the defendant pleaded the general issue.

At the trial of the cause before Mr. Baron Graham at the last assizes for the county of Warwick, a verdict was taken for the plaintiff for 281. 1s. 9d. subject to the opinion of the Court upon the following case.

The plaintiff was the farmer of the post-horse duty for the counties of Northampton, Rutland, Warwick, and Orford, and the defendant, who was an innkeeper at Kington, in the county of Warwick, was charged by the plaintiff, as farmer of such duties, for post-horse duties to the amount of 321. 5s. 9d. in respect of two horses let by the defendant on hire from the 15th November, 1818, to the 27th March, 1821, being for a period of one hundred and twenty-three weeks, according to the following particular of the plaintiff's demand, delivered under a Judge's order.

"To the amount of post-horse duties due from the defendant to the plaintiff, as farmer of such duties, in respect of horses let by the defendant on hire, viz. two horses let on hire to draw or assist in drawing the mail, or other coach up Edge Hill, near Kington, in the county of Warwick,

IN THE THIRD YEAR OF GEO. IV.

from the 15th November, 1818, to the 27th March, 1821, being one hundred and twenty-three weeks-32l. 5s. 9d.” In the beginning of the year 1919, several persons en tered into contracts with the superintendant of mail coaches, to run the Kidderminster mail coach through Birmingham and Banbury to London; and Mr. Charles Whyatt, of Banbury, contracted to work it from Kington to Banbury, the coach carrying four inside and three outside passengers. The distance from Kington to Banbury is twelve miles and a half. The road passes over Edge Hill, which is about three miles from Kington, exceedingly steep, and about three-quarters of a mile long, and the whole stage was to be performed in one one hour and fifty minutes. The defendant, being duly licensed to let post-horses, agreed with Whyatt to furnish him weekly with two additional horses to hook on before the leaders, to assist in drawing the mail coach up Edge Hill, at the rate or charge of one guinea per week. The defendant did accordingly, (but with some exceptions when he happened not to have any horses at liberty) from the 15th March, 1819, to the 27th March, 1821, furnish weekly such additional horses, and received from Whyatt one guinea per week for their use, and a man to drive them. These additional horses were sent to the bottom of Edge Hill, to await the arrival of the coach, except when there happened not to be time to send them there, and then they were put on to the coach at Kington, and were always taken off at the top of the hill. The horses so furnished were sometimes used by the defendant as post-horses, and sometimes they were cart horses, as it might happen to be most convenient to him at the time. The coach, to assist in drawing which, the two horses in question were used, was a public stagecoach, and was drawn by four horses, carried the mail, and was licensed to carry passengers. Edge Hill being very steep, and the road up it very bad, the coach could

1822,

DOWSE

ຍ.

GARETT.