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oat to be unfounded. The .Court would see that parties guilty of such imposition on the Couri, should not derive advantage from their misrepresentation. He would therefore order the fiat to be superseded, and a nev/Jiat issued to the prop<r district commissioners, the proceedings to be taken up at their present stage, in order to save expense to the estate. The matter having been brought before the Court on a mere verbal complaint, and not on petition, he would say nothing as to costs.
In the mailer of Evans, June 3d and 17th, 18J7.
fting'jS Xcnrf). [Before the Four Judges."]
ft seems that where a man is lawfully taken by the sheriff" under the authority of a trrit of attachment for contempt, issuing out of Chancery, but is detained in custorty after he has become by the rules imposed by the 11 Gen. 4, and 1 fT. 4, c. 36,». I I, entitled to his discharge, trespass trill not lie against the sheriff' for such a detainer; hut the party's remedy, if any, must be by an action on the case. At all events the sheriff in such a case cannot be treated as a trespasser ab initio.
As there are two classes of cases of contempt mentioned in the statute, and as the provisions relating to them differ from each other, the party claiming to b» discharged must give dis'inct notice to the sheriff of the sort of contempt for which he has bren imprisoned, and of the matter in consequence of which he is entitled to his discharge.
Demurrer to a replication. The declaration, which was in trespass, stated an assault and false imprisonment. Plea, as to the assault and false imprisonment, that before and at the time when, &c, there issued out of the Court of Chancery, a certain writ called a writ of attachment, against the said plaintiff and another person, which 6aid writ was directed to the defendant as sheriff of Hull; and that he the said defendant as such sheriff, took the plaintiff.&c. Replication, setting forth the nature of the contempt for which the attachment issued, and alleging a statutory order in the Court of Chancery, by which, if the plaintiff in the suit in that Court did not take certain proceedings within thirty days after the issuing of such attachment, the defendant in the suit became entitled to his discharge. It then alleged that in the suit in which the present plaintiff had been defendant in Chancery, such proceedings were not taken within the time limited, whereby the present plaintiff became entitled to his discharge; that he demanded to to be discharged, but that the defendant refused to discharge him. Demurrer and joinder.
Mr. R. V. Richards, in support of the depiurrcr.—The defendant here cannot be made
a trespasser ab initio, by relation to what is done by him after the first arrest. Neither can he be a trespasser at all, and the form of this action is misconceived. The remedy of the plaintiff, if any, ought to be by an action on the case. The replication sets forth an attachment, said to be issued for a particular cause. It was an attachment which proceeded on the 11 G. 4, and 1 W. 4, c. 36, s. 15, rule 5. By that statutory rule it is enacted, that "if the defendant under process of contempt for not appearing, or not answering, be in actual custody, and shall not have been sooner brought to the bar of the Court under process to answer his contempt, the plaintiff, if the contempt be not sooner cleared, shall bring the defendant by habeas corpus to the bar of the Court within 30 days from the time of his being actually in custody upon process of contempt; and in case any such defendant shall not be brought to the bar of the Court within the respective times aforesaid, the sheriff, &c, in whose custody he shall be, shall thereupon discharge him out of custody without payment by him of the costs of contempt." In this case therefore, two questions arise:—first, whether, in any view whatever, the sheriff is bound to discharge a prisoner in his custody for contempt, without an order from the Court, for contempt of which he is in custody, or at least without some application being made to the Court for that purpose; and secondly, whether he ought not to have notice, and if so, whether the proper remedy in this instance, would not be case, instead of trespass. The replication here, though it states the cause for which the attachment issued, does not shew that the attachment had been set aside, nor does it state that the defendant had notice of the cause of the attachment. The 18th rule under the same section, shews that the statute contemplated that the prisoner entitled to his discharge should apply to the Court to direct it. No such application was made in this case, and the sheriff of his own authority had no power to discbarge a person who was committed to his custody for contempt. The purport of this replication is to make the sheriff a trespasser ab initio. That cannot be done without the replication distinctly shewing the fact of the abuse. See Six Carpenters' case." That has not been done here. The case of Crozer v. Pilling,b clearly recognizes the doctrine that a sheriff cannot discharge a prisoner except upon some act of the Court, or of the party at whose suit that prisoner is in custody. This was a mere non-feasance of the sheriff, and trespass will not lie for a non-feasance. The plaintiff should have new assigned the excess of authority in the detainer. Gates v. Bayley,e was a stronger case than the present. There the defendant had impounded cattle, and impounded them in so small a place that one of them died. Trespass was brought, and the defendant justified the impounding, the
Superior Courts; King's Bench.
cattle being damage feasant, and the Court held that the justification was good as to the trespass, which would not lie for the dying of the beast. This case is not like Winterbourne v. Morfrt<n,A but even there the defendant was not held a trespasser ub initio. A man is entitled to his discharge, if a declaration is not delivered against hiin within a certain time; yet a sheriff who kept him after that time would not be a trespasser, nor would he become so till after a writ of supersedeas had been served on him. No matter how irregular a judgment mav be, it will protect a sheriff who detains a defendant under it, until it has been set aside, and he has had notice of it.
Mr. HurUtun, in support of the plea.—This form of action has been properly adopted, if the sheriff is bound to discharge the plaintiff at the expiration of' the time limited. Is he bound to do so i The words of the rule are distinct and positive, and there is no mention in it of any application to the Court. The other rules, which mention an application to the Court, are applicable only to particular cases which do not resemble the present. These rules have received the construction of the Vice Chancellor in the case of fa re Dunn. That case is not yet reported, but the statement of it by Mr. .Simons, the reporter of that Court,—which statement is fully confirmed by Mr. Torriano, who was counsel in it,—is,that an application was made to the Vice Chancellor, under circumstances exactly similar to the present, for an order for the discharge of a prisoner; hut his Honor saw that an order was not necessary, for that the sheriff would be bound to discharge the prisoner at the end of the time limited, or would be liable to an action. That opinion of the Vice Chancellor is not exactly an authority to govern the present case, but it is an opinion which this Court will treat with great respect. In a common case, the order of the plaintiff to the sheriff to discharge the defendant is sufficient; and the sheriff cannot after the receipt of that order detain the defendant, or he will be liable to an action. There is no necessity in such a case for an application to the Court; nor is there any necessity for it here. The rule in the statute is in effect a command, like the order from a plaintiff. The force of the writ was spent, and the authority of the sheriff was gone at the end of the time limited. The effect of the King's writ for the delivery of a prisoner is stated in the Second Institute."* This statute has the same effect. As to the want of notice of the cause of commitment, the defendant's own plea shews that it was for contempt, and the plaintiff alleges a demand to be discharged, and a refusal on the part of the sheriff. The sheriff was therefore guilty of more than a mere non feasance. There could be no new assignment here, for the plea justifies the whole imprisonment. There can only
be a new assignment where the plaintiff relies on a cause of action different to that to which the plea applies.' [Lord Denman, C. J.—Have you looked at the case of Salmon v. Perceealit That was a case of trespass against the serjeant at mace of the city, and he pleaded a special justification on arrest, under warrant in execution of his office: the plaintiff replied that he tendered sufficient bail, and that the defendant then refused to discharge him; and it was there held that on this replication the remedy (if any) was case, and not trespass.] That was a mere case of breach of duty—here the sheriff has been guilty of a disobedience of the provisions of a statute.
Lord Denman, C. J.—This action cannot be maintained in its present form. It should have been in case. The decision in the case in Croke is an authority on that point. It may be true as a general proposition, that when the law consigns one man to the custody of another, that other ought to know when that custody is at an end. But in the present case that was a matter depending not on any thing within the defendant's knowledge; and if he had taken upon himself to discharge the plaintiff, he might have acted prematurely, and might have rendered himself liable to be proceeded against for so doing. Under the circumstances of this case, the defendant has done nothing to render himself a trespasser.
Mr. Justice Littledale.—This action is not maintainable, but at all events the replication is improper. The Six Carpenters' Case shews that when a person has authority to do an act, if he abuses his lawful authority, trespass may be maintained against him, for by such abuse of his authority he becomes a trespasser ah initio; but that case does not apply here, for the sheriff did not abuse his authority. It does not appear here that the sheriff had any notice what the nature of this contempt was. By the provisions of the rule that have been referred to, the sheriff must in certain cases of contempt discharge within thirty days after arrest; but there is nothing here to shew that the sheriff had notice that the contempt for which this party was arrested was a case of that sort. This plaintiff ought to have shewn that the sheriff knew it to be so, before he could make the sheriff answerable.
Mr. Justice Patteson.—The declaration here is in the general form. It does not state that the defendant kept and detained the plaintiff improperly. Then after the plea, which sets Up a special justification, on a writ issuing out of Chancerv, the replication does not say "I have brougnt the action on account of the trespasses justified in the plea," but treats the defendant as a trespasser, ab initio. I doubt whether in such a case as the present, trespass will lie at all; but certainly it will not lie against the defendant as a trespasser, ab initio. I agree with my brother Littledale, that there
Superior Courts: King's Bench Practice Court.; Common Pleas.
being two distinct classes of causes of contempt, the sheriff is not bound to know for which the defendant is committed, and that the plaintiff must shew him to have had notice of the particular cause before he can be rendered a trespasser. The party who seeks to he discharged ought to inform the sheriff" that he is in custody for a contempt of such a nature that he will be entitled to his discharge after the expiration of thirty days. Here he did nothing of that sort. But'it is not necessary to go into that question. It is enough to say here that the defendant is not and cannot be treated as a trespasser ah initio; and that there is not therefore any good cause of action against him set forth on this record.
Mr. Justice Williams, concurred.
Judgment for the defendant.—Smith v. Egginton, T. T. 1837. K. B. F. J.
Sing'S Bnirfj ^practice <£otirt.
COUNTRY CAUSES.—JUDGMENT AS IN CASE OF NONSUIT.
la a country cause, where issue is joined in Easter vacation, und there is no notice of trial for the Summer Assizes, judgment as in case of a nonsuit may be applied for in Michaelmas term. Cooke bad obtained a rule for judgment as in case of a nonsuit, against which,
Wightman shewed cause. It appeared that issue was joined in Easter vacation, and the rule was obtained in the following Michaelmas term, no notice having been given for the summer assizes, and the cause being a country cause. It was submitted that the application «as made too soon, because, even supposing that the issue must be taken to have been joined in Easter term, the plaintiff not being obliged to take more than one step in a term, he would not be compelled to enter issue until Trinity. By the 1 R. G. H. T. 2 VV. 4, s. 70, it was true, that entry of the issue was unnecessary, in order to enable the defendant to move for judgment as in case of a nonsuit; but the practice on the subject must remain as it was, notwithstanding that rule, as to the time at which the plaintiff was bound to proceed to trial. He pointed out the cases of Wingrave v. Hudson, 2 D. P. C. 379, and Douglas v. fVynn, 4 D. P. C. 559.
Cooke, in support of his rule, cited Williams v. Edwards, 3 D. P. C. 183.
Littledute,A.—According to the old practice, the course of the Court was, that the plaintiff might have been ruled to enter the issue in Trinity Term, and if he omitted to do so he was not to he in any better condition than if he had gone on properly according to the regular course of the Court. The cause was therefore quite complete at the end of Trinity Term, and as the trial of a country cause has nothing to do with terms, notice of trial should have been given for the Summer assizes. It would he very singular if the Summer assizes were permitted to be passed
over, and then notice were to he given in Michaelmas Term for the Spring assizes. Smith v. Uigby, 3 D. P. C. "09, is a case in point. I think therefore the defendant does not come too soon, and the rule must he absolute. The cases cited by Mr. Wightman, are not exactly in point. My decision in this case does not apply to town causes.
Un an application being made subsequently, the plaintiff obtained permission to produce an affidavit to excuse his delay, in order that he might have the rule discharged, on his giving a peremptory undertaking.
Rule accordingly,—Robinson v. 'Jnyl'>r,T. T. 1837. K. B. P. C.
BANKRUPT.—PLEADING. —SEVERAL PI.EAS.
Scmhle, that an affidavit of the assignees of a bankrupt, that they have nothing to do with an action, is a sufficient answer to an application for leave tv plead the bankruptcy of one of several plaintiffs since the commencement of the action.
R. V. Richards shewed cause against a rule obtained by Greenwood, and which called on the plaintiff to shew cause why the defendant should not be at liberty to plead the bankruptcy of one of the plaintiffs since the commeucemeut of the action. The action was commenced in the year 1827, and the declaration delivered in T. T. in that year. The cause stood over until the present year, and on the 8th May, an order was made by Coltman, J., that the defendant should have a week's time to plead, on condition of his pleading issuably and taking short notice of trial. An application had been made to Dosanyuet, J., at chambers, to plead non assumpsit and the bankruptcy of one of the plaintiffs, but it was refused. The question was, whether the plea of bankruptcy of one of the plaintiffs was an issuable plea, and it was urged that it was not, as it did not take issue upon any material matter.
Tindal, C. J.—Let us see whether the assignees of the bankrupt might bring an action.
R. V. Richards offered to produce an affidavit that the assignees had nothing to do with the action.
Tindal, C. J.—Tltat will satisfy us.
Greenwood, in the last day of Term, applied to make the rule absolute. He had inquired of Mr. Richards whether he had the affidavit, and was informed that he had, but that gentleman said he could not find it.
The application was renewed once or twice in the course of the day, Mr. Richards being absent, and the rule was at length made absolute.
Rule absolute.—Staples and others v. Holdsworth, T. T. 1837. C. P.
TROM1SS0RT NOTE —AWIEST.— 43 Geo. 3., C. 46.—BAIL.
The holder of a bill, for which he hat given Value, trill be entitled to arrest for the whole amount, and the defendant trill not he entitled to costs under the 43 Geo. 3, c. 46, on the plaintiff recovering a less sum than that for which the arrest was made. Serable, that a person having been arrested, and having gone to prison, has been held to special bail within the 43 Geo. 3, c. 46. s. 3.
This was an action on a promissory note for 100/., made by the defendant, and indorsed to plaintiff, and the defendant had been arrested for the whole amount, but was discharged in consequence of some defect in the affidavit to hold to bail. The defendant pleaded that the note was given for a special consideration, which hud failed, and that the plaintiff had given no value for it. The plaintiff in reply entered a nolle prosequi, except as to 49/., which was the sum which he had in reality given for the note, and for this sum at the trial a verdict was returned for him.
Thomas had under these circumstances obtained a rule nisi for the allowance of the defendant's costs under the 43 Geo. 3, c. 46, s. 3, against which,
V. Williams now shewed cause.—The question was, whether the defendant had been arrested and held to bail within the meaning of the statute. The section of the Act of Parliament provided that in all cases where the defendant should be arrested and held to special bail, and where the plaintiff should not recover the sum for which the arrest took place, he should be entitled to costs of Buit, &c.; so that in order to give the defendant a right to the costs, there must be not only an arrest, but a holding to special bail. Mr. Justice Bayleq, in his judgment in the case of Bates v. Pilling, 2 D. P. C. 397; 2 C. & M. 374 said, that it was alwavs most desirable to construe Acts of Parliament as much as possible with reference to their context, and to adhere strictly to their language. In the construction of an act, reference might be had to the title. The title of the act now in question was "An act for the more effectual prevention of frivolous and vexatious arrests," and the provisions themselves referred to all actions wherein the defendants should be arrested and held to special bail. The arrest and the holding to special bail were separate and dis tinct proceedings, in which different parties acted, and both therefore must be taken, in order to bring a case within the intention and meaning of the legislature. In the case of Amor v. Blofield, 9 Bug. 91, Parke, J., was of opinion that the party must be arrested and held to special bail.
Lord Abinger, C. B.—A man is not arrested who voluntarily gives special bail; but when he is arrested, it is for the purpose of giving special bail. Vaughan, B., in Bates v. Pitting, expressed an opinion that there must be both
an arrest and a holding to bail; but that point was not immediately before the court.
Parke, B.—The m'eaningof the term "arrest." is the holding a man in custody until he shall give bail. If a man should be arrested until he give special bail, he is not held to give special bail. If a man is arrested and placed under the obligation of giving special bail, he is not within the act.
V. IVilliams.—The case of a man who was arrested, and told he need not give special bail, but only enter an appeal ance, would not be within the statute.
Parhe, B.—If arrested and placed under the obligation of giving bail, is not that enongh?
V. Williams.—It was urged that he should say he would take the benefit of the statute. In the present case the defendant had not got out by the due course of law, but by a defect in the affidavit to hold to bail. In the construction of wills, or might be construed <md, if it were necessary in order to give effect to the intention of the testator; but if that was likely to do violence to the intention of the testator, it would not be done. The same rule would apply to the construction of acts of parliament; and the most proper construction to be put on this statute was, that no one should be entitled to the benefit of it, unless he had been arrested first, and then held in custody until he should put in special bail in due course of law. Special bail was point ed out as distinguished from common bail.
Parke, B.—Certainly: if the holding to special bail, means that a party is to be imprisoned until he finds special ball, and in order that he may find it, he is in that sense held to special bail. The case of Bates v. Pilling only decides that there must be an arrest.
Thomas, in supporting his ride.—The act will be satisfied bv a person being placed in a situation in which he must give bail, or go to prison. The act did not require positively that he should give special bail, but only that he must give bail.
Lord Abinger, C. B.—We are not called upon to give any decision upon the point raised by Mr. Williams, as it appears that the plaintiff did not know that this was an accommodation note. If he had known that circumstance, and had then arrested the defendant for the whole amount, the case would have been within the act of parliament. A party, however, who holds a bill for which he has given some value, is quite justified in bringing his action for the whole amount, unless he has previously ascertained that there is no claim on it against the defendant beyond his own. Otherwise how would bankers be placed who have a lien upon bills for the balance due from their customers? Less may he due to them perhaps than the amount of the bill, but they would be wrong if they did not bring an action for the whole amount.
Parke, B.—I do not feel that it is necessary for me to say anything with regard to the question on the 43 Geo. 3. The plaintiff was the holder of a bill for 100/., on which pri \fucie that sum was due to him. He'
Superior Courts: Exchequer.—Parliamentary Proceedings.
entitled to sue for the whole sum, since the holder of a bill has both his own title, and that of the person who before held it.
Rule accordingly.—Edwards v. Jones, E. T. 1837. Excheq.
An appearance need nut, in this Court, be entered fur the casual ejector in an action uf ejectment, before judgment is signed, and it will not be allowed on taxation of costs.
Sir W. Fulletl shewed cause against a rule obtained by Erie for setting aside judgment against the casual ejector, on the ground of irregularity: the judgment being signed before an appearance was entered. He referred to Tidd's Practice, Vol. 2, p. 1224, where it was laid down to be necessary for common hail to be filed for the casual ejector in the King:s Bench before judgment should be signed, although it was said, that it was not necessary to enter an appearance for him by original; and the Rule of Court, M. T. 33 Car. 2, was referred to. No such practice existed in this Ccurt, or in the Common Pleas. The statute 5 Geo. 2, c. 27, by which a plaintiff was empowered to enter an appearance for the defendant, did not apply to ejectments, because it was provided by the act, that the defendant should first be served with a copy of the writ.
Erie, in support of his rule, submitted that it was clear that in the King's Bench an appearance must be entered, and that the practice in this Court was similar. It was stated in Chilly's Archbold, p. 537, that an appearance must be entered for Richard Roe.
Parke, B.—We are informed by the officer, that in this Court no such practice exists; although where an appearance has been entered, it has been allowed on taxation of costs. Costs, however, in future will not be taxed, as there is no such practice in existence.
Rule absolute on pavment of costs —Doe d. Morgan v. Roe, T. T. 1837. Excheq.
ftouft of &orW.
BILLS FOR SECOND READING.
To establish Local Courts.
Irish and Scotch Affidavits.
Marriages and Registration.
Jjoutfe of Command.
BILLS TO BE BROUGHT IN.
Local Courts Mr. Roebuck.
Abolishing Grand Juries . . Mr. Prime. To extend the Suffrage of Householders.
To amend the Marriage Act. Mr. Wilks. Parish Vestries.—To abolish Plural Voting.
Qualification of Members. Mr. Warburton. Mortgages on Ships. Mr. G. F. Young.
Law of Costs and General Issue. Sir F. Pollock. Powers of Tenants for life of Estates in Ireland
Repealing Septennial Act. Mr. Williams.
Mr. D'Eyncourt. Power of Judges to commit. Mr. Charlton.
FOR SECOND READING.
Controverted Elections . . Mr. C. Buller. Law of Patents .... Mr. Mackinon. Offences against the Person . Mr. A. Trevor. Freemens' Admission.
Final Register of Electors. . Mr. Elpinstone. Bankrupt Laws. Solicitor General.
Bribery at Elections .... Mr. Hardy. Repealing Usurv Law on Bills of Exchange. To amend the Law of Wills.
The Attorney General. Registration of Voters. Attorney General. Prisons Regulations . . Mr. Fox Maule. Recovery of Tenements. Mr. Algionby.
Residence of Clergy.
Public Records Mr. C. Buller.
Secular Jurisdiction of York and Ely.
Bills of Exchange.
Final Register of Electors.
Powers of Trading Companies.
CONSIDERATION OF REPORT.
Abolishing Imprisonment for debt.
The Attorney General.
Sheriffs* Courts. Capt. Pechell.
Small Debt Courts Col. Seale.
Uniformity of Process Act. Mr. Elphinstone.