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1812. recover: if they were, the verdict was to be entered for

such sum as the Court should direct; if otherwise, a BRETT and Another nonsuit to be entered.

against CLOSE,

Bayley, for the plaintiffs, contended that these notes, which were given for the purpose of procuring the dis. charge of Dent out of custody on the attachment, were available in the hands of the plaintiffs. In order to maintain the contrary, it must be shewn that such discharge with the consent of the party who issued the warrant, was unlawful, without the authority of the Court; and that process of this description, being process for a contempt, must be executed according to the very letter and rigour of it, and not according to its spirit and intention, which was to secure the payment of the money. There is no case directly in point upon process of attachment out of the Court of Chancery, but by analogy to the acts of the sheriff executing the process of fieri facias, it may be argued that it is sufficient if the full purpose of the process is answered. Thus in Cockram v. Welby (a), it was held a sufficient execution of a fi. fa. that the sheriff, though directed to take the goods, took the money of the defendant; and debt to recover such money lay before the return of the writ. So, in Taylor v. Bekon (b) it is said that payment to the sheriff on a fi. fa. is a good plea; which shews that the sheriff is not bound to execute the writ according to its rigour. And although in that case, it is also said that payment to him on a ca. sa. would not be good, and so it was adjudged in 12 Mod. (c); yet even there, if the party himself who sued out the process, or his agent, agree to the dis

(a) 2 Show. 79.

(6) 2 Lev. 203.

(C) P. 385. Aron.

charge,

BRETT

CLOSE.

charge, it seems that it will be good (a); and yet on a 1812. ca. sa. the sheriff is directed to take the body. It may be said that those were all cases of civil process, whereas and Another this is in the nature of criminal process. It is true that

against the warrant of commitment is so in form, but in substance it is only ancillary to the compelling payment; and

upon the same principle, in Rex v. Myers (6), Buller, J. said that it had been settled that an attachment for non-performance of an award is only in the nature of a civil execution. The same point was held in Bonafous v. Schoole (c). So, in Rex v. Pickerill (d), the Court considered that it was no objection to the defendant's being discharged under the Lord's act, that he was in execution for a contempt on a quo warranto information. And in 2 P. Wms. (e), it was held at the Rolls, that if a man be in contempt for want of answering, and the plaintiff's clerk in court accept the costs of the contempt, it purges the contempt. So here, Dent was in contempt for nonpayment of a certified balance, and a warrant of commitment was issued thereon; when, therefore, the plaintiff or his solicitor were paid the balance, or, what is the same thing, were satisfied by accepting the promissory notes, it purged the contempt, and the officer was at liberty to discharge him. And here the party has had the benefit of such discharge; so that the consideration of the notes has not wholly failed, even supposing him liable to be again taken by the other parties to the suit. It may be observed also, that these notes were not given to the officer, which has sometimes afforded an objection, but to the plaintiffs themselves; and that makes it a stronger case than Pilkington v.

(a) 14 East, 474. Slackford V. Austen. (c) 4 T. R. 316. (d) Ibid. 809.

(6) I T. R. 266.
(e) P. 482. Anon.

Green,

1812.

Green (a), where the note was given to the officer, and yet held good.

BRETT and Another

against Close.

Puller, contrà, insisted that the notes were bad, 1st, for want of consideration; and, 2dly, that if there were any consideration, it was against law, being founded on a breach of duty of the officer entrusted with the execution of process. 1st, There were several parties to the suit in Chancery, and the solicitor for the party on whose behalf the notes were taken, had no authority to bind the others, so that Dent, the very instant after he was discharged, was liable to be taken again. In Nerot v. Wallaoe (6), Ashhurst, J. was of opinion that it was necessary, to found a consideration, that the party promising should have the power of carrying it into effect. Here the discharge was the consideration. In order therefore to have carried it into effect, and have made a good consideration, the notes should have been taken for the benefit, and with the concurrence of all the parties interested; and then they would have been bound, and Dent would have reaped the fruits of his discharge; but as it now stands it is nudum pactum. This is to be inferred from the reason of the decision in Pilkington v. Green, because there it was held that as the note was accepted by the parties interested, it had a sufficient consideration. But, 2dly, supposing there was a consideration, it was unlawful; for the officer was bound to execute the warrant according to its tenor, by taking his prisoner to the gaol, and detaining him there until further order. It may be sufficient upon process merely civil, to execute it according to its spirit and the intention of the parties, but criminal process ought to be under the guidance of the court out of which (a) 2 Bos. & Pull. 151.

(6) 3 T. R. 23.

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1812.

BRETT and Another

against CLOSE,

it issues. Even upon a ca. sa. a gaoler cannot liberate his prisoner, upon an undertaking to pay the debt. In Martyn v. Blithman (a) it was considered as an escape so to do; and in Love's case (b) the Court said that by the capias, the sheriff is to take and keep in salvâ custodiâ, and to give liberty is contrary to the writ; and Slackford V. Austen (c) is to the same effect. A farther objection may be made to these notes, that they include in their amount a larger sum for costs than was due; and that affords a ground for suspecting that the authority of the Court of Chancery has been used as an instrument of extortion; which is a case, according to Beeley v. Wingfield (d), that this Court will watch very jealously.

Lord ELLENBOROUGH, C. J. If in this case I saw that there was any purposed contempt of the process of the Court of Chancery, in order to defeat any of the objects of that process, or if the taking of these notes had obviated the ulterior justice of the case, I should have said that it was illegal. But if all the justice meant to be attained by the Chancellor's warrant has been attained, in what consists the illegality? Here a person having a balance certified against him as receiver, an attachment issued upon it out of the Court of Chancery, and he is taken under the attachment, and in order to obtain liberation of his person, gives two notes for the amount of all that he was liable to pay, which the other party agrees to accept. The question is, whether such notes are illegal in respect of the consideration, that consideration, as it is said, involving a contempt of court. It seems that the

(a) Yolu. 197.
(6) Salk. 28.

(c) 14 East, 468.
(d) 11 East, 48.

process,

1912.

BRETT and Another

against CLOSE.

process, although criminal in its form, was merely ancillary to civil purposes; the party who sued out the process, had tlte control over it as at common law, and he has obtained his redress by accepting the notes, and has superseded his own process, after taking satisfaction for it. Can it be fairly said that in so doing he has been guilty of a contempt of court? An attachment for the non-performance of an award is also criminal in its form, but being for the attainment of a civil satisfaction, it has been treated as such in our own times. Then it is argued that this is nudum pactum, inasmuch as the other parties to the suit are not bound by it, but may sue out another attachment against him ; but that does not shew it to be nudum pactum, although perhaps it is a bad bargain, because the party does not reap all the benefit he might expect from it, but remains liable to be taken again. But no person complains of this as a contempt of court, or as fraudulent in its intention, nor is it suggested that there is the least shadow of complaint by any of the parties interested on which the Court of Chancery is likely to animadvert; but the surety now attempts to take advantage of it, in order to exempt himself from liability. As to the sum given to cover the costs, the parties were obliged in that stage of the proceeding to take it at hazard for an unascertained sum, which would only be good for the real amount when ascertained; and nothing is stated to shew that the party has refused to allow for the surplus. This process therefore being merely ancillary to civil objects, and there being no contempt of court, nor any fraud intended upon any of the parties, I do not think there was any thing illegal in the transaction.

GROSE,

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