Superior Courts: King's Bench Practice Court.

293

bail, and by that means have obtained his liberation sooner than he otherwise could have done. The provision in the act of parliament was evidently in favour of liberty, and the word "forthwith " intended immediately on the arrest. This argument was strengthened by the form of the writ, which commanded the sheriff" on its execution," to deliver a copy to the defendant. Hodgson v. Towning, 5 D. P. C. 410, was in point as to the objection amounting to an irregularity only. That was a case in which in order to execute a ca. sa., the sheriff had broken an outer door to arrest the defendant, and the Court ordered the defendant to be discharged on a summary application. There the Court interfered in a much stronger manner than their interposition in the present case would be, for the process was

c. 9, s. 4. The defendant, it appeared, was I til he received the copy; and had he received it arrested at nine o'clock in the morning, but at an earlier hour, he might have procured no copy of the writ was delivered to him until seven in the evening of the same day. Butt now shewed cause, and contended that the simple question for consideration was, the proper construction to be put upon the word "forthwith." It was clear from the words being in the alternative " upon or forthwith after," that it was not intended that the writ should be delivered necessarily immediately on the arrest taking place, and "forthwith after " might be taken to mean within a reasonable time. Here the time within which the copy of the capias was delivered, must be taken to be reasonable, and no injury could result to the defendant from his not having had it at an earlier hour. Should the time, however, be deemed unreasonable, the officer of the sheriff was the person who was to blame, for it was to him that execution of the process was en-final, while here it was only nesne. trusted, and the plaintiff ought not to suffer in consequence of his neglect. It was the duty of the plaintiff to deliver the capias to the sheriff only, and it must be presumed that this had been done, and the remedy must therefore be against the sheriff.

Williams, J.-The sheriff is the agent only of the plaintiff in the execution of process, and the latter must therefore be answerable for any non compliance with the statute by the for

mer.

Butt urged that admitting the liability of the plaintiff, this non compliance with the act was only an irregularity, as the provision on this subject was merely directory. The process, therefore, was not void, and the defendant asked far too much in requiring his discharge. The Court would not usually interfere when the objection was of so minute a description as the present. Thus in Forbes v. Mason, 3 D. P. C. 104, the Court of Common Practice decided, that the omission of immaterial articles in a capius, was not such an irregularity as to indice the Court to take notice of it, provided the meaning of the writ was not altered. All that the legislature had in view had been done in the present case, for the defendant had received his copy of the writ, which was correct, and which gave him all the information which was requisite, with regard to the proceedings to be taken to obtain his discharge, and the Court would not now interfere on so slight an objection to deprive the plaintiff of his rights.

Martin, contrà, urged that the provisions of the statute must be strictly followed. It had always been the practice of the Courts, where the remedy of arrest was adopted, to adhere most scrupulously to the course laid down by the statute. The question of convenience or inconvenience to the party, had never been taken into consideration; but it was only seen whether the prescribed course pointed out for plaintiff to pursue had been acted upon. There, however, the neglect to serve the copy immediately after the arrest, which was ་་ forthwith," might produce an extended imprisonment. The defendant was in ignorance as to the proper steps to be taken un

Williams, J.-The first question is the meaning which I am to give to the word "forthwith." There can be no doubt that all the forms prescribed, are for the benefit of the party arrested; and it is incumbent, therefore, upon the executing the process to comply with the precise directions of the statute. The injunction of the act in the present case seems to be imperative, and there was a good reason for the enactment, which was that the party should be put in possession of his real position, in order that he might set himself in motion to procure his discharge. I am bound therefore to give the provision that construction which shall be most favourable to the defendant. The other question is, whether the copy of the capias was delivered to the defendant at the time of the arrest, or within such a time as shall be deemed to be forthwith. I think that it was not, and the rule must be absolute, no action to be brought.

Rule absolute accordingly. Shearmun v. M'Knight, E. T. 1837. K. B. P. C.

PLEA PUIS DARREIN CONTINUANCE, 2 R. G.,
H. T. 4 W. 4.-VERIFICATION.

A rule nisi having been obtained for leave to
plead the coverture of the plaintiff puis
darrein continuance, the Court on a motion
to make the rule absolute on an affidavit of
service, refused to dispense with the affida-
vit under 2 R. G., H.T. 4 W. 4, that the
matter of the plea had arisen within eight
days of the time of pleading.

Thesiger applied to make a rule absolute, no cause being shewn. It was a rule obtained by the defendant for leave to plead the plaintiff's coverture puis durrien continuance. The action was brought against the defendant for darkening ancient windows belonging to the plaintiff, and the defendant had pleaded not guilty. Notice of trial was given for the sittings after Hilary Term, but the cause was not then tried, and a few days before the 22d April, a rumour was circulated that the plaintit had been married, and the present rule

294

Superior Courts: King's Bench Practice Court.

of costs. Such an application as the present was required to be made promptly, according to the practice of the Court; and if the defendant had waited until the rule for staying pro. ceedings on the bail bond had been disposed of, it would have been said that he was guilty of laches, and was not entitled to the security for which he applied.

Coleridge, J.-I have to consider whether the defendant is sufficiently in Court for me to make the rule absolute. I think he has no right to make such an application as the present during the pendency of the proceedings on the bail bond, and the rule must therefore discharged.

was in consequence obtained on that day, it
having been previously learned that the plain-
tiff had married a man named Bush, at the
beginning of the month. The 2 Reg. Gen.
H. T. 4 W. 4, was pointed out, which abolished
generally the entering of continuances, and
then went on to provide that wherever a plea
puis darrein continuance was pleadable by law
in banc or at nisi prius, the same defence might
be pleaded, with an allegation that the matter
arose after the last pleading or the issuing of
jury process, as the case might be, and then
it went to say, that no such plea should be
allowed unless accompanied by an affidavit that
the matter arose within eight days of the plead-be
ing, or unless the Court or Judge should
otherwise order. The present rule was merely
to be allowed to plead the coverture, but it
was now sought to introduce the term that the
affidavit alluded to in the rule of Court should
be dispensed with. The rule was to be allowed
to plead the coverture, although it had taken
place more than eight days before the plea
was pleaded.

Williams, J.-That should have been, made part of the rule when it was obtained, and cannot now be introduced. Had it been a part of the rule, the plaintiff might have shewn cause, but I can now only make the rule absolute as it stands, and any alteration in its terms, must be made by another application.

Rule absolute accordingly-Powell v. Duncan, E. T. 1837. K. B. P. C.

Rule discharged. Bonnefor v. Russel, E. T. 1837. K. B. P. C.

NEW TRIAL.-UNDERSHERIFF.

The Court will not grant a new trial, on the
ground of the verdict which was found for
the defendant being against evidence, the
amount in dispute being less than 51. and
the trial having taken place before the
undersheriff.

trial in this cause on the ground of the verdict
Bingham had obtained a rule for a new
being against evidence. It was an action of
a sum of 21. 14s., to which one defendant
debt, and the plaintiff by his particulars claimed
pleaded that he was never indebted, while the
other suffered judgment by default.
cause was tried before the undersheriff, and

The

ASSIGNMENT OF BAIL BOND.-SECURITY FOR the principal question before the jury was,

COSTS.

An assignment of the bail bond having been taken, the original defendant cannot succeed in an application for security for costs, until the proceedings on it are finally stayed.

Humfrey had obtained a rule calling on the plaintiff to shew cause why he should not give security for costs. It appeared that the defendant had originally been arrested, and had given a bail bond to the sheriff, but not having perfected bail in time, an assignment of the bond was taken, and the plaintiff commenced proceedings on it. The defendant then put in and perfected bail, and an application was made to set aside proceedings on the bail bond on payment of costs; but before the rule had been disposed of, the present application was made, on the ground of the plaintiff being abroad.

Barstow shewed cause, and submitted that the application was premature. The defendant ought before he made it, to have purged himself entirely of the contempt in which he was. Proceedings, however, on the bail bond were still pending, and it could not be known whether the plaintiff intended to proceed against him or on the bail bond.

whether the defendants were in partnership, and a verdict was eventually given for the defendant.

the matter was entirely for the jury; but he Bere now shewed cause, and contended that took a preliminary objection that the Court would not interfere, the amount sought to be recovered being under 51. He cited the case of Packham v. Newman, 1 C. M. & R. 585. The Judges in the Court of Exchequer there declared, with the concurrence of the justices in the other Courts, that in the case of a writ of trial, where a verdict for less than 57. was given, no new trial would be granted when the ground of application was, that the verdict was against evidence. Young v. Harris, 2 C. & J. 14, was a decision which would support that case; but the Court there further held, that when the sum in dispute was under 201. and the verdict was for the defendant, they would not grant a new trial. The case of Packham v. Newman, was an adoption of the principle with respect to verdicts under 201. in cases where verdicts were under 57.; and if the rule applied to defendants in one case, it would surely be extended to defendants in the other also.

Bingham said, that the rule was obtained as much on the ground of misdirection as otherHumfrey, in support of his rule.--The defen-wise, for the proof of the existence of the dant had perfected bail above, and was there-partnership was so clear, that it was the duty fore in Court, for it was a matter of course to of the undersheriff to have told the jury to stay proceedings on the bail bond, on payment find for the plaintiff.

Superior Courts: King's Bench Practice Court. -Sittings in Chancery.

SITTINGS IN CHANCERY.
Michaelmas Term, 1837.

Before the Lord Chancellor,

Williams, J.-It was for the jury to judge of the facts, and if they have judged improperly, the application must be considered as against evidence. It is said that the jury could find only one verdict, namely for the plaintiff upon the testimony of the witnesses, and the objection is therefore to the verdict, because it is against evidence. If the verdict had been for the plaintiff, the case of Packham v. Newman puts it beyond a doubt that the Court would not interfere to set aside the verdict. It is however for the defendant, but the claim in Friday dispute is under 5l., and I am of opinion therefore that I ought not to disturb the verdict, by Saturday analogy to the case of Young v. Harris. The Monday Tuesday rule must therefore be discharged. Rule discharged.-Lyddon v. Coombes and Wednesday another, E. T. 1837. K. B. P. C.

DISPAUPERING A PLAINTIFF.

The Court dispaupered a plaintiff, where, after having given notice of trial, he withdrew the record on the second day of the assizes, on the ground of its requiring amendment.

Chilton had obtained a rule for dispaupering the plaintiff, on the ground of his having vexatiously given notice of trial, on which he did

not act.

AT WESTMINSTER.

295

Thursday.. Nov. 2 Appeal Motions and Mo3 Petition-day.

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Friday
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Tuesday
Wednesday

Thursday

Friday
Saturday
Monday
Tuesday
Wednesday
Thursday
Friday

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15.

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{

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Motions and Mo

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His Lordship after the Appeals will proceed

C. C. Jones shewed cause.-The action was brought for an alleged trespass, and notice of trial was given for the Hertford assizes. On the second day of the assizes, however, the plaintiff withdrew his record, on the ground of Saturday its requiring amendment. An affidavit was now produced, in which the necessity of the amendment of the record was sworn to, and it was submitted, therefore, that the plaintiff's conduct could not be considered as vexatious. Should there be any doubt in the mind of the Court, as to whether the plaintiff had proceeded with a view to vexation, they would not make the rule absolute, as the effect would be to deprive the plaintiff of the means of obtaining justice.

Chilton contended that the affidavit produced was unsatisfactory. It was not shewn what the amendment required was, or that any application had been made to the Judge at the assizes to alter the record. There was also an absence of any allegation that the defendant's consent to the amendment had been asked. Williams, J.-I think the plaintiff has acted vexatiously in not proceeding to trial pursuant to his notice. If he had applied to the Judge at the assizes, the amendment might have been made upon such terms as should have appeared to him to be just, but after putting the defendant to the inconvenience and expence of bringing his witnesses down to the assizes, he thinks proper merely to withdraw the record. The present rule must be absolute. Rule accordingly.-Facer v. French and

another, E. T. 1837. K. B. P. C.

on Causes.

296

Miscellanea. The Editor's Letter Box.

MISCELLANEA.

ANCIENT LAW LANGUAGE.

The introduction of the French language into the judicial proceedings in England is thus explained by Fortescue, in his De Laudibus legum Angliæ, cap. 48.

court-hand."

Fortescue, the reporter, says:

proceedings whatsoever in any courts of justice within this commonwealth, and which concern the law and administration of justice, shall be in the English tongue only, and not English, any law, custom, or usage heretofore in Latin or French, or any other language than to the contrary notwithstanding; and that the same, and every of them, shall be written in "Likewise the Frenchmen, after their com-racter, and not in any hand commonly called an ordinary, usual, and legible hand and chaing into England, reckoned not the accounts of their revenues but in their own language, lest they should be deceived therein, neither had they delight to hunt, and to exercise other sports and pastimes, and at dice-play and the hand-ball, but in their own proper tongue. Wherefore the Englishmen, by much using of their company, grew in such a perfectness of the same language, that at this day, in such plays and accounts, they use the French tongue. And they were wont to plead in French, until by force of a certain statute that manner was much restrained. But it could never be wholly abolished, as well by reason of certain terms, which pleaders do more properly express in French than in English, as also, for that declarations upon original writs cannot be pronounced so agreeably to the nature of those writs as in French; and under the same speech the forms of such declarations are learned. Moreover all pleas, arguments, and judgments, passed in the king's courts, and entered into books for the instruction of them that shall come after, are evermore reported in the French tongue. Many statutes also of that realin are written in French."

The 36 Edw. 3. enacts that all pleas, &c. shall be pleaded, shewn, defended, answered, debated, and judged in the English tongue, and entered and enrolled in Lutin.

In Scobell's Collection of Acts, p. 143, is "An Act for turning the Books of Law and all Processes and Proceedings in Courts of Justice into English." The following is an

extract from this act :

66

The Parliament have thought fit to declare and enact, and be it declared and enacted by this present Parliament, and by the authority of the same, that all the report books of the resolutions of the Judges, and other books of the law of England, shall be translated into the English tongue; and that from and after the 1st day of January, 1650, all report books of the resolutions of Judges, and all other books of the law of England which shall be printed, shall be in the English tongue only.

"While the Saxon is totally neglected, some, not content to learn the law French for what is already wrote in, seem fond of the use of it, and of writing new things in it; but for what reason I am at a loss, and at a greater yet, why any lawyer should write resent state of law-French, as used by some moports in that tongue. If we consider the predern reporters, wherein all the antiquated true French is lost, and instead thereof, English words substituted, with French terminations tacked to them; this still makes it worse, and thereby it is become even the corruption of an imperfect and barbarous speech, understood by no foreigner, not even by the French themselves, serving only as a mark of our subjection to the Normans, and for the use of which the French despise us."

The Latin continued to be the language of the records till the time of George the 2d, when the statute passed for rendering them into English.

THE EDITOR'S LETTER BOX.

We have now reprinted several numbers, and complete Sets of the Legal Observer may be obtained of the Publisher, and Subscribers desiring to have any separate numbers to complete their Volumes will be supplied with them on the usual terms for a short time to come. The first Ten Volumes with a General Index may be had for 57.

R. S. is referred to our recent announcement regarding Queries and Answers. We think the birth of A. cannot now be registered; but, if our correspondent will look into the old law as well as the new act, and state his own view concisely, we will consider the subject.

The price of the whole Collection of Acts relating to the Law passed in the Session 1836, with Notes, edited by Barristers for the Proprietors of the Legal Observer, is 8s. only. We presume that F. J. S., on further consideration will perceive the reasonableness of the separate Acts being at a higher proportionate There is generally an allowance on articles taken in a large quantity! The Third Part of the Analytical Digest of Cases for 1837 is now published.

"And be it further enacted by the authority aforesaid, that from and after the first return of Easter term which shall be in the year 1651, all writs, process, and returns thereof, and all pleadings, rules, orders, indictments, injunc-rate. tions, certificates, and all patents, commissions, records, judgments, statutes, recognizances, rolls, entries, and proceedings of courts leet, courts baron, and customary courts, and all

The Legal Observer.

SATURDAY, AUGUST 26, 1837.

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