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It was also sworn, that a person, by the direction of the defendant, called at the office of the plaintiffs'attorney two days after the arrest, when the former informed him that the debt and costs in the action had been paid, and were then in the hands of the sheriff, and shewed him the receipt of the officer, which the plaintiffs' attorney read, and requested to know his address, which was accordingly given; and on an inquiry as to the amount of the costs, the plaintiffs' attorney said that they would not amount to more than 41. or 5l.; to which the person sent by the defendant replied, that he would write to the sheriff for the surplus that might remain, after the payment of the debt and costs. That the plaintiffs' attorney wrote to the undersheriff of Herts on the 6th October, requiring him to remit the debt and costs, amounting to 601. 6s. 7d. viz.-debt, 561. 13s. Id.; costs, 31. 13s. 6d., which the latter omitted to do ; and the money not having been paid into Court at the return of the writ, the plaintiffs’ attorney, on the first day of the last Michaelmas Term, filed a declaration de bene esse, and of which notice was duly given. The sheriff returned cepi corpus; and that he had discharged the defendant on his depositing the sum indorsed on the writ, with 101. in addition to answer costs, &c. The plaintiffs' attorney then moved the Court for the sheriff to pay in that sum, which was done shortly after the commencement of the last Hilary Term, when it was taken out by the plaintiffs in the usual course. The plaintiffs' attorney having afterwards taxed his costs, which amounted, by the allocatur of the prothonotary, to 301. 10s. 6d., on the 5th March last he applied to the defendant for the payment of 241. 3s., in addition to the sum of 641., originally paid by him to the officer, and for which he gave him credit, viz.
Under these circumstances, the learned Serjeant submitted, that the debt and costs in the action had been satisfied by the defendant on his being arrested, as he had deposited more than was sufficient to satisfy the debt and costs up to the return of the writ with the officer, under the statute 43 Geo. 3. c. 46, s. 2 (a), and more particularly so, as the defendant had in. formed the plaintiffs' attorney that he should only require the surplus to be returned, if any remained after the payment of the debt and costs.
Mr. Serjeant Vaughan shewed cause in the first instance, and submitted, that the plaintiffs were not to suffer for the default of the sheriff, in not having paid over the money deposited under the statute, nor were they to be bound by his acts. That they were compelled to pursue the course they did, by filing a declaration, and ruling the sheriff to pay the Court, for their own safety; and for the costs of which the defendant must be primarily liable.
(a) By which it is enacted, that “ all persons who shall be arrested upon mesne process within England and Ireland, shall be allowed, in lieu of giving bail to the sheriff, to deposit in the hands of the sheriff, by delivering to him or to his undersheriff, or her officers to be by him appointed for that purpose, the sum indorsed upon the writ, by virtue of the affidavit for holding to bail in that action, together with len pounds in addition to such sum, to answer the costs which may accrue or be incurred in such action, up to and at the time of the return of the writ; and also such further sum of money, if any, as shall have been paid for the king's fine upor any original writ; and shall thereupon be discharged from such arrest, as to the action in which he, she, or they shall so deposit the sum indorsed on the writ.”
But, Per Curiam.—The defendant, immediately on his arrest, paid the amount of the debt, and 10l. for costs, to the officer who arrested him, as required by the statute 43 Geo. 9. c. 46. The latter sum was more than sufficient to cover the costs then incurred; and the statute provides, that it is to answer the costs which may accrue or be incurred in the action, up to and at the time of the return of the writ. When the plaintiffs' attorney was informed that the deposit was made with the officer, he should have proceeded no further in the action; for it was made according to the terms of the statute, which was passed in ease of persons who might not be able to find sufficient sureties for their appearance at the return of the writ. The sheriff and his officer were put in motion by the şuing out and delivery of the writ; and the plaintiffs had their remedy against the former, if he had been guilty of any negligence or default. Although the plaintiffs' attorney was entitled to file a declaration de bene esse, the money not having been paid into Court at the return of the writ, and rule the sheriff to pay it in, yet the expenses attending these proceedings were altogether unnecessary, as such attorney had admitted that the debt and costs incurred to the time of the arrest, had been paid by the defendant to the sheriff's officer, by requiring the undersheriff to remit the sum of 601. 6s. 7d. as the amount of such debt and costs. Besides, the person sent on behalf of the defendant stated, that the latter would only claim the surplus that might remain out of the 10l. deposited by him, after the plaintiffs' costs had been satisfied. The plaintiffs' attorney therefore, adopted the acts of the sheriff and his officer. On these grounds therefore, this rule must be made
CoSTER v. MEREST.
May 15th This was an action brought by the plaintiff, as the Where the holder, against the defendant, as acceptor of two bills to set aside :
verdict for the of exchange for 500l. each, drawn on the latter by one defendant, on Hance, payable to his own order, and indorsed by him an affidavit,
stating that to the plaintiff.
handbills, reAt the trial of the cause before Lord Chief Justice character, had
flecting on his Dallas, at Guildhall, at 'the Sittings after the last been circulated Term, the acceptance by the defendant was proved, seen by several
of the jury at when the latter proved that he had caused a notice to be the trial, the served on the plaintiff, to prove the consideration upon to admit affidawhich he received the bills; to which, however, no vits from the
jurors, that they attention was paid. Certain letters, written by Hance, had not seen
such handbills, were received in evidence, to shew that the transaction but granted a between him and the plaintiff was fraudulent at the new trial,
though the de;
that he had no not been indorsed to the latter until they were over- knowledge of due.
their having been printed
or circulated. His Lordship thought that there was sufficient şus- ceptor of a bill
of exchange picion raised on the face of these letters to call on the
against whom plaintiff to shew what consideration he gave for the an action had
been brought bills; and the jury considering that the transaction by the holder, between him and Hance had been fraudulent, and that latter notice to the acceptances had been improperly obtained from prove the conthe defendant, they accordingly found a verdict for had given for
such bill; and him.
letters of the drawer were
given in eviMr. Serjeant Vaughan, on a former day in this Term, dence to shew had obtained a rule nisi, that this verdict might be set action between
him and the holder was fraudulent. Quære, whether it was incumbent on the holder to prove such consideration. --Semble, that such letters were properly received as evidence at the trial.
Where the ac
aside and a new trial granted, on the grounds-first, that the letters of Hance should not have been received in evidence, but that he should have been called as a witness ; 'and secondly, on an affidavit of the plaintiff, which stated that handbills, or printed papers, reflecting on his conduct and character, had been exhibited and circulated in Court, at the instance of the defend. ant, and seen by several of the jurors, of whom nine were talesmen, at the trial; that he was not aware of that circumstance at the time, but that he had since been informed of it. In support of the first ground, the learned Serjeant cited the case of Kent v. Lowen(u), where in an action by the indorsee of a note against the maker, the defence was usury in its original concoction; and certain letters, written by the payee to the maker, negociating a usurious bargain, were offered in evidence: Lord Ellenborough ruled, that it was first necessary to prove, either by the post-mark or otherwise, that such letters were contemporaneous with the making of the note. Here the letters given in evidence at the trial bore no date, and the postmarks were torn off; they, therefore, ought not to have been admitted : and it was, at all events, incumbent on the defendant to shew the circumstances under which the bills got into the possession of the plaintiff, if his defence rested on their having been obtained by fraud.
Mr. Serjeant Lens now shewed cause, and produced an affidavit of the defendant, who swore that he had no knowledge whatever of the handbills having been circulated, and that they were printed without his authority. He also offered to put in affidavits from all the jury, that no such handbills had been shewn to
(a) i Camp. 177.