Page images


tings, and not at a sittings in Term, no trial can be lost; and he is therefore entitled to have this rule made absolute.



But the Court referring to Mr. Secondary Griffith, he stated that the general practice was not to change the venue in such a case, unless there were special circumstances disclosed in the affidavit on which the

åp plication was founded, to induce the Court to do so. And Mr. Justice Burrough observed, that it is considered to be one among what are coinmonly expressed in an order for time to plead on all the usual terms, that the defendant shall not afterwards move to change the venue; and that when the order is intended to be without prejudice to a change of venue, it should be so expressed in the summons for attending the Judge.

Rule discharged (a).

(a) See Waring v. Holl, 3 Price, 3. Talmash v. Penner, 3 Bos. & Pul. 13. Wilson v. Harris, 2 Bos. & Pul. 320.

CHRISTIE v. WALKER and four others.

Tuesday, Feb. Ultba

Tuis was an action of debt on a recognizance of bail ; Where, in an and the rule to plead several matters having been erro- five defendants, neously entitled Christie v. Walker, instead of Christie v. the rule to

plead several Walker and others, the plaintiff signed judgment as for matters was

erroneously want of a plea.

entitled A. v. B. instead of A. v. B. and others

the Mr. Serjeant Hullock, on a former day in this Terin, titt signed judgobtained a rule nisi, that this judgment might be set ment as for aside, on an affidavit, which stated that the defendants the Court set it

aside without




had a good defence to the action, and that 'the pleas were not sham'or fictitious, but went to the merits of the cause,


Mr. Serjeant Lawes now shewed cause, and submitted, that as the judgment had been properly signed in consequence of the irregularity in the defendant's proceedings, it ought not to be set aside; and more particularly so, as it had been obtained against all of them, and they had pleaded four several and distinct pleas; or, at all events, that it could not be done but on the terms of amending the recognizance roll.

The Court being of opinion that such sharp practice ought not to be encouraged, ordered the role to be made

Absolute, but without costs.

Tuesday, Feb. Ilth.

BLACHFORD, Assignee of the Sheriffs of London, v.


The plaintiff

Mr. Serjeant Taddy, on a former day in this Term, obhaving ruled the sheriff to

tained a rule nisi, that the proceedings which had been bring in the

taken on the bail bond in this cause might be set aside for body, cannot take an assign- irregularity, on the ground that the plaintiff had taken an ment of the bail bond pend. assigument thereof, after having ruled the sheriff to bring ing such rule, in the body; and he relied on the case of Wright v. tion by him to Walker (a), where the Court were of opinion, that as bail proceed against the sheriff in had been put in and justified within the time from ruling the first instance ; and the the sheriff to bring in the body, it was not competent to affidavits to set the plaintiff to proceed upon the bail bond. . That, ceedings on the therefore, is an express authority to shew, that a plaintiff bail bond, must be entitled in the action

(a) 3 Bos. & Pul. 564. against the bail.


is not at liberty to proceed on the bail bond pending the rule to bring in the body.



Mr. Serjeant Lens now shewed cause, and submitted in the first place, that the affidavits should have been entitled in the original action, and not in the action against the bail.–Secondly, that the plaintiff, by taking an assignment of the bail bond, had waived his proceedings against the sheriff, which he was entitled to do; and more particularly so, as the rule to bring in the body had not expired, before which, he was precluded from proceeding by attachment. And although in North v. Erans (a) it was decided that an attachment against the sheriff issued before the time for perfecting bail had expired, could not be set aside unless the bail had been perfected, yet the plaintiff may take an assignment of the bail bond; and more particularly so, as here it does not appear whether the defendant had rendered, or bail had justified, before the assignment was taken.

The Court, as to the first objection, referred to the case of Ham v. Philcox (6), as being precisely in point; and observed, that the reason they had come to that distinction was, that if the affidavits were entitled in the ori. ginal cause, a difficulty might arise, should an indictment for perjury be preferred, as the plaintiff in proceeding on the bail bond had a right to two distinct writs and declarations, viz. the one against the principal, and the other against the bail, the obligation of the bond being joint and several. With respect to the second, they observed that the plaintiff had made his election in the first instance, by ruling the sheriffs to bring in the body ; and that while that rule was pending, he could not take an assigninent of the bail bond. That he could

[blocks in formation]



not avail himself of two remedies at the same time, bat must await the event of the rule on the sheriff, before he proceeded on the bail bond. The rule was consequently made


Absolute (a).


(a) See 1 Tidd, 7 th edit. 319. Pople v. Wyatt, 15 East, 215, contrd.



Feb. 11th.

The plaintiff

Tuis was an action of debt, founded on the statute has his option to issue a writ 2 and 3 Edw. 6, c. 13, and brought by the plaintiff, as of inquiry or

rector of Wythyham, in Sussex, against the defendant, for not, in an action of debt, not setting out tithes. The declaration contained three founded on the statute 2 and counts; first for the treble value of corn, grain, hay, hops,

Edw; 6;.c13, and beans, not set out by the defendant ; secondly, for brought to recover the tre

tithes bargained and sold by the plaintiff to the defendble value of tithes; and ant; and lastly, on an account stated. The defendant where, in such an action, having suffered judgment by default, a writ of inquiry the declaration

was issued to assess the damages in the common form, contained a count for treble and the sheriff returned, that the jury had found under value,and other counts for the inquisition taken thereon, that the plaintiff had sustithes bargained tained damages to the sum of 261. 45. 9d. being treble on an account the amount of the value of the tithes of corn, grain, hay, stated ; and the defendant suf. hops, and beans, such amount of treble value being by default, and 171. 4s. 9d., and the suin of gl. being the single amount the jury on a of the value of the other tithes due and payable to the writ of inquiry, assessed the plaintiff froới the defendant in the said writ also Damed. plaintiff's damages, at 171. 4s. 9d. on the first count, for the treble value, and 91. for the single value on the other counts, but omitted to find costs, the Court ordered the return of the inquisition to be amended, by the insertion of nominal damages as to the last counts, on which costs de incremento might be added : -and it seems, that the statute 8 and 9 Will. 3, c. 11, s. 3, which gives the plaintiff his costs in all actions of debt for not setting forth tithes, where the damage found by the jury should not ex. ceed twenty nobles, is confined to cases where a plaintiff obtains judgment after plea pleaded, or demurrer joined, and does not apply to a case where a defeodant suffers judgment by default.




Mr. Serjeant D'Oyley, on a former day in this Term, obtained a rule, calling on the defendant to shew cause why the return of this inquisition should not be amended by the insertion of nominal damages, and why costs de incremento should not be added thereon by the prothonotary, he having refused to allow the plaintiff any costs on taxation, as the jury had omitted to find any under the inquisition. The learned Serjeant relied on the cases of Ward v. Snell(a), and Arden v. Connell (6), in the former of which, which was an action for a penalty on the habeas corpus act, the jury having omitted to give costs, which they ought to have done in an action where costs are re-. coverable at law (and which they clearly are in the present case under the statute 8 and 9 Will. 3, c. ll, s. 3,(c);) but found a verdict for the penalty merely, without da. mages or costs: the Court inade a rule absolute for the prothonolary to tax the plaintiff bis costs, and that the associate should indorse them on the postea ; and in the late case of Arden y. Connell, from which it seems that a writ of inquiry is necessary in an action of debt for use and occupation after judgment by default, before signing final judgment; Mr. Justice Holroyd expressly said, “ that in actions on the statute of Edw. 6, for not setting out tithes, there must be a writ of inquiry to ascertain the value of the tithe.” Here, therefore, the writ of inquiry was not only properly sued out by the plaintiff, but the return to the inquisition may be amended by the Court,

(a) 1 Hen. Bl. 10. (6) 5 Barn. & Ald. 885. (c) By which it is enacted, that “ in all actions of debt upon the statute for not setting forth tithes, wherein the single value found by the jury shall not exceed the sum of twenty nobles, the plaintiff obtaining judgment, or any award of execution after plea pleaded, or demurrer joined therein, shall likewise recover his costs of suit ; and if the plaintift shall become nonsuit or suffer a discontinuance, or a verdict shall pass against bim, the defendant shall recover his costs, and have execution for the same by capias ad satisfa. ciendum, fieri facias, or elegit."

« PreviousContinue »