Superior Courts: King's Bench. out to be unfounded. The Court would see King's Bench. SHERIFF. 163 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 It seems that where a man is lawfully taken by the sheriff under the authority of a writ brought to the bar of the Court within the respective times aforesaid, the sheriff, &c., in of attachment for contempt, issuing out of whose custody he shall be, shall thereupon Chancery, but is detained in custody after discharge him out of custody without payment he has become by the rules imposed by the by him of the costs of contempt." In this case ¡l Geo. 4, and Ĭ W. 4, c. 36,8. 11, entitled therefore, two questions arise:first, whether, to his discharge, trespass will not lie against in any view whatever, the sheriff is bound to the sheriff for such a detainer; but the discharge a prisoner in his custody for conparty's remedy, if any, must be by an ac-tempt, without an order from the Court, for tion on the case. At all events the sheriff contempt of which he is in custody, or at in such a case cannot be treated as a tres- least without some application being made to passer ab initio. 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 Demurrer to a replication. The declaration, contemplated that the prisoner entitled to his which was in trespass, stated an assault and discharge should apply to the Court to direct false imprisonment. Plea, as to the assault it. No such application was made in this case, and false imprisonment, that before and at the and the sheriff of his own authority had no time when, &c., there issued out of the Court power to discharge a person who was comof Chancery, a certain writ called a writ of mitted to his custody for contempt. The purattachment, against the said plaintiff and an- port of this replication is to make the sheriff a That cannot be done other person, which said writ was directed to trespasser ab initio. the defendant as sheriff of Hull; and that he without the replication distinctly shewing the the said defendant as such sheriff, took the fact of the abuse. See Six Carpenters' case.a plaintiff, &c. Replication, setting forth the na- That has not been done here. The case of ture of the contempt for which the attachment Crozer v. Pilling, clearly recognizes the docissued, and alleging a statutory order in the trine that a sheriff cannot discharge a prisoner Court of Chancery, by which, if the plaintiff in except upon some act of the Court, or of the the suit in that Court did not take certain pro- party at whose suit that prisoner is in custody. ceedings within thirty days after the issuing of This was a mere non-feasance of the sheriff, such attachment, the defendant in the suit be- and trespass will not lie for a non-feasance. came entitled to his discharge. It then al-The plaintiff should have new assigned the exleged that in the suit in which the present cess of authority in the detainer. plaintiff had been defendant in Chancery, such Bayley, was a stronger case than the present. proceedings were not taken within the time There the defendant had impounded cattle, fimited, whereby the present plaintiff became and impounded them in so small a place that entitled to his discharge; that he demanded to one of them died. Trespass was brought, and to be discharged, but that the defendant re- the defendant justified the impounding, the fused to discharge him. Demurrer and joinder. 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 be discharged must give distinct notice to the sheriff of the sort of contempt for which he has been imprisoned, and of the matter in consequence of which he is entitled to his discharge. Mr. R. V. Richards, in support of the demurrer.-The defendant here cannot be made a 8 Rep. 290. Gates v. b 4 Barn. & Cres. 26. c 2 Wils. 313. 164 Superior Courts; King's Bench. cattle being damage feasant, and the Court | be a new assignment where the plaintiff relies held that the justification was good as to the on a cause of action different to that to which trespass, which would not lie for the dying of the beast. This case is not like Winterbourne v. Morgun, but even there the defendant was not held a trespasser ab initio. A man is entitled to his discharge, if a declaration is not delivered against him 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 supersedeus had been served on him. No matter how irregular a judgment may 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. the plea applies. [Lord Denman, C. J.-Have you looked at the case of Salmon v. Perceval? 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 has been guilty of a disobedience of the provimere case of breach of duty-here the sheriff sions 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. matter depending not on any thing within the But in the present case that was a 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. Hurlston, 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? 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 In 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 Mr. Justice Littledale.-This action is not Chancellor, under circumstances exactly si- maintainable, but at all events the replication milar to the present, for an order for the dis- is improper. The Six Carpenters' Case shews charge of a prisoner; but his Honor saw that that when a person has authority to do an act, an order was not necessary, for that the sheriff if he abuses his lawful authority, trespass may would be bound to discharge the prisoner at be maintained against him, for by such abuse the end of the time limited, or would be liable of his authority he becomes a trespasser ab to an action. That opinion of the Vice Chan-initio; but that case does not apply here, for cellor 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. 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 fendant as a trespasser, ab initio. " but treats the dethe sheriff. The sheriff was therefore guilty of whether in such a case as the present, trespass I doubt more than a mere non feasance. There could will lie at all; but certainly it will not lie be no new assignment here, for the plea justi-against the defendant as a trespasser, ab initio. fies the whole imprisonment. There can only I agree with my brother Littledale, that there The 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 the sheriff knew it to be so, before he could This plaintiff ought to have shewn make the sheriff answerable. that sort. 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 Chancery, the replication does not say “I have brought the action on account of the trespasses justified in the plea,' 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 be 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 ab 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. King's Bench Practice Court. COUNTRY CAUSES.-JUDGMENT AS IN CASE OF In a country cause, where issue is joined in Cooke had 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 was 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 W. 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 procced to trial. He pointed out the cases of Wingrove v. Hodson, 2 D. P. C. 379, and Douglas v. Wynn, 4 D. P. C. 559. Cooke, in support of his rule, cited Williams v. Edwards, 3 D. P. C. 183. Littledule, J.-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 be 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 Sum. mer assizes. It would he very singular if the Summer assizes were permitted to be passed 165 over, and then notice were to be given in Rule accordingly,-Robinson v. Taylor, T. Common Pleas. BANKRUPT.-PLEADING.-SEVERAL PLEAS. Semble, 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 to plead the bank ruptcy of one of several plaintiff's 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 com+ The action was mencemeut of the action. commenced in the year 1827, and the declara, The tion delivered in T. T. in that year. 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 Bo sanquet, J., at chambers, to plead non assump sit and the bankruptcy of one of the plaintiff's, 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 assig nees 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.-That will satisfy us. Greenwood, in the last day of Term, apHe had plied to make the rule absolute. 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 abso lute. Rule absolute. Staples and others v. Holdsworth, T. T. 1837. C. P. Exchequer. PROMISSORY NOTE. — ARREST.—43 GEO. 3., c. 46.-BAIL. The holder of a bill, for which he has given value, will be entitled to arrest for the whole amount, and the defendant will not be 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. Semble, 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 had failed, and that the plaintiff had given no value for it. The plaintiff in reply entered a nolle prosequi, except as to 497., 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, an arrest and a holding to bail; but that point was not immediately before the court. Parke, B.-The meaning of 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. Williams.-The case of a man who was arrested, and told he need not give special bail, but only enter an appearance, would not be within the statute. Parke, B.-Certainly: if the holding to special bail, means that a party is to be imprisoned until he finds special bail, 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. Parke, 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 and, 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 V. Williams now shewed cause.-The ques-course of law. Special bail was pointed out as tion was, whether the defendant had been distinguished from common bail. 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 suit, &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 Bayley, in his judgment in the case of Bates v. Pilling, 2 D. P. C. 397; 2 C. & M. 374, said, that it was always most desirable to Lord Abinger, C. B.-We are not called upon construe Acts of Parliament as much as to give any decision upon the point raised by possible with reference to their context, and Mr. Williams, as it appears that the plaintif to adhere strictly to their language. In the did not know that this was an accommodation construction of an act, reference might be had note. If he had known that circumstance, and to the title. The title of the act now in question had then arrested the defendant for the whole was "An act for the more effectual preven-amount, the case would have been within the tion 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 distinct 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 Bing. 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. Pilling, expressed an opinion that there must be both Thomas, in supporting his rule.—The act will be satisfied by 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. 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 1007., on which_prima facie that sum was due to him. He was Superior Courts: Exchequer.-Parliamentary Proceedings. entitled to sue for the whole sum, since the EJECTMENT APPEARANCE.-COSTS. IN COMMITTEE. Irish and Scotch Affidavits. PASSED. Pillory Abolition. Marriages and Registration. THIRD READING. House of Commons. BILLS TO BE BROUGHT IN. 167 Mr. Roebuck. Local Courts To amend the Marriage Act. An appearance need not, in this Court, be entered for the casual ejector in an action of Recorders' Courts. ejectment, before judgment is signed, and it will not be allowed on taxation of costs. Sir W. Follett shewed cause against a rule obtained by Erle 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 bail 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 Court, 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. Erle, 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 Chitty'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 payment of costs-Doe d. Morgan v. Roe, T. T. 1837. Excheq. Mr. Hume. Plural Voting. Mr. Wakley. 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. Power of Judges to commit. Mr. Lynch. Mr. Williams. Mr. D'Eyncourt. Mr. Charlton. FOR SECOND READING. Controverted Elections Offences against the Person Mr. C. Buller. Mr. Mackinon. Mr. A. Trevor. Mr. Elpinstone. Solicitor General. IN COMMITTEE. Mr. Hardy. Bribery at Elections . Registration of Voters. Highway Rates. The Attorney General. Mr. C. Buller. Secular Jurisdiction of York and Ely. Rolls Estate. Inclosure Awards. Metropolis Police. Bills of Exchange. Final Register of Electors. Parliamentary Electors. Powers of Trading Companies. CONSIDERATION OF REPORT. Abolishing Imprisonment for debt. BILLS POSTPONED. Sheriffs' Courts. Small Debt Courts.. The Attorney General. Capt. Pechell. Uniformity of Process Act. Mr. Elphinstone. |