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1828.

ANSTEE

v. LILEY

fendant relied only on the statute of Elizabeth (a). In Taylor v. Blair (b), the Court held, with reference to the Westminster Court of Requests Act, that if the defendant omitted to plead his exemption, a suggestion could not be entered on the record, nor could the proceedings be stayed. It is fair and just that he should put this on the record, and not take the party by surprise: Harris v. Lloyd (c). Taylor v. Blair is confirmed by Parker v. Elding (d), in which case it was held, that where the statute gives the plea, it seems to require that the matter shall be put on the record.

Gurney and Busby, contrà. All the parties resided within the jurisdiction of the liberty of St. Alban’s. The defendant may come at any time before judgment, and shew that the plaintiff has disobeyed the law. In Taylor v. Blair (e) Lord Kenyon says, perhaps the defendant might have availed himself of the objection at the trial. Here the defendant was not aware of the act at the time of the trial (f). The plaintiff is not in a worse state than if the

(a) 43 Eliz. cap.6.

it may be proper to state. “Juris (6) 3 T. R. 452.

ignorantia non prodest adquirere (c) 4 M. & S. 171; ante, 562, 3. volentibus, suum vero petentibus (d) 1 East, 352.

non nocet,” D. 22, 6, 7; or, as it (e) 3 T. R. 452; ante, 565. is expressed by the commentators,

(f) The defendant was not ig- “ Juris error, ubi de damno evinorant of the fact of the residence tando agitur, non nocet: ubi de within the liberty, and his igno- lucro captando, nocet: error facti, rance of the statute, which is de- neutro casu nocet." “ Minoribus clared (sect. 24) to be a public 25 annis jus ignorare permissum act, would not avail him; for igno- est: quod et in fæminis in quibusrantia legis neminem excusat. Bil- dam causis propter sexus infirmi. bie v. Lumley, 2 East, 471; Wil- tatem dicitur; et ideo, sicubi non liams v. Bartholomew, 1 B. & P. est delictum, sed juris ignorantia,

Stevens v. Lynch, 12 East, non læduntur:" D. 22, 6, 9. And 38; East India Company v. Trit. see Pothier, Traité de l'Action, ton, 5 D. & R. 214, 3 B. & C. Condictio indebiti, part. 2, sect. 2, 280, 290. This rule is borrowed art. 3. In Vernon's case, Mich. from the civil law, (D. lib. 22, 20 Hen. 7, fo. 2, pl. 4, the defend. tit. 6,) without, however, adopting ants justified taking away the plainwith it those equitable modifica- tiff's wife, on the ground that they tions by which the rule was origi- were accompanying her to Westnally accompanied, some of which minster, to sue for a divorce in ease

322;

1828.

ANSTEE

0. LILEY.

objection had been taken at the trial. (Lord Tenterden, C. J. Here you apply for a suggestion, not for a nonsuit.] In Shaddick v. Bennett (a) it was held, that the sum recovered is to be considered the debt for which the action is brought. That was a case upon the London Court of Requests Act (6). But the Lord Chief Justice there says, “the language of the statutes, from which these Courts of Requests derive jurisdiction, certainly varies, but they have all one common object, and should, therefore, all receive a similar construction" (c).

Lord TENTERDEN, C.J.-This is an application to enter a suggestion under 25 Geo. 2, c. 38. Taylor vBlair seems to be precisely in point. There the words are as absolute as the present. They are precisely the same in both respects.

If we were to over-rule that case, our own decisions might in like manner be over-ruled by our successors. You chuse to resist the action, and ought to pay the costs.

The other Judges concurred.

Rule discharged.

of her conscience. It was objected to the plea, that the defendants ought to have taken her to the ordinary or the metropolitan; but the plea was held good," for perhaps they had not knowledge of the law as to where the divorce should be sued.” And see Manser's case,

2 Co. Rep. 4; Doctor and Stu-
dent, book 2, cap. 46, 47; Eich-
horn v. Le Maitre, 2 Wils. 368.

(a) 7 D. & R. 229; 4 B. & C.
769.

(b) 39 & 40 Geo. 3, cap. 104, sect. 12.

(c) 7 D. & R. 232.

BRADLEY v. GOMPERTZ. THIS was a rule calling upon the plaintiff to shew cause Sham bail in why the writ of fi. fa. and execution thereon should not be error may be set aside for irregularity, with costs, the alleged irregularity nullity, and being that execution was sued out upon the judgment, execution may

treated as a

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1828. after the allowance of a writ of error, under which bail in

error had been put in, which had not been excepted tons BRADLEY

opted on piisl 1157 61 10 sunt ad iino Tinicia udo GOMPERTZ. R. V. Richards shewed cause, upon an affidavit, stating

that the bail were hired; that they were men in the remployment of the tipstaff; that they had received money, the one 5s. and the other 45. 6d., for becoming bail; that'one of them had recently before been discharged under the Insolvent Act, and that the other had been bail fifteen times in the present, and five times in the last term: rand contended that, under such circumstances, the plaintiff was entitled to treat the bail as a nullity, and to sue out exedution. He cited 'Ward v. Levi (a) as å decision of this Court expressly in his favour, and one which had been confirmed and acted upon by the Court of Common Pleas in the case of Browne v. Brown (b).

INI

I tig! :") W. Clarkson, contra. The facts stated on the other side may be true, but the defendant bas bad no opportunity of answering them. Assuming that they are true, then, according to the authorities cited, it must be admitted, that the bail would not operate as a stay of execution. But the

(a) 2 D. & R. 421; 1 B. & C. bail, who were answerable, not for 268. There, hired bail, who were the person of the defendant, but insolvent, of whom notice had been the actual payment of the debt; given, and to whom no exception and he declared that as no error was entered, became bail in error. was suggested on the record, such The plaintiff, treating the writ of bail being put in to a writ of error error and the bail as a nullity, en- was a gross fraud upon the Court tered up judgment, and took out and its suitors; and though the execution. It was held that the rule did not ask for costs, fet, to execution was regular; and this mark the sense which the Court Court discharged a rule for setting entertained of such

disgraceful it aside, with costs.

! 111. practices, the rule should be disAnd see Crum v. Kitchen, H.T. charged with costs. 1820, 2 D. & R. 421, n.,

(6) 4 Bingh. 68, where the Court upon a similar motion, Bayley, J. 1. of Common Pleas held, that if observed,

that
upon mesne

process hired bail be put in on a writ of the plaintiff had the security of error, the plaintiff inay issue exthe sheriff or the bail-bond, but in ecution. error he had no security but the

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where,

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1828.

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plaintiff has no right to take the remedy into his own hands, and to treat the bail as a nullity. He ought to have served

BRADLEY the plaintiff with a rule for better bail, or to have applied Ata the Court for leave to sue out execution, úpon an affi- COMPERTZ. -davit suggesting the facts, which the defendant would then

have had an opportunity of answering. This view of the
subject has recently been taken by Bayley, Joon a similar
application, made before him at chambers, and in which
that learned judge, under circumstances very like the pre-
sent, set aside the execution. [Bayley, J, I certainly do
not recollect making the decision attributed to me, though
I may have done so, and the circumstance have escaped my
memory. But I am quite sure that if I did so decide, the
cases cited to-day were not brought before my notice.]
M 1

Lord Tenterden, C.J.-I think the decisions of this Court and of the Court of Common Pleas upon this subject, to which we have been referred, are perfectly correct, and that we are bound to act upon them in this case. The reason given by the Court of Common Pleas is a very good

one, namely, that the plaintiff, in issuing execution, acts at "" his own peril; for if what he does is called in question, he must shew, beyond all doubt, that the bail are hired. Here he has done so. It is certainly a gross fraud upon the Court for a defendant to put in such bail; and I think the plaintiff in justice ought to be allowed to treat them as a nullity. I am, therefore, of opinion that this rule should be discharged with costs.

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BAYLEY, J.-I am entirely of the same opinion. The decisions upon the subject seem to me perfectly right, and I think the general rule ought to be so laid down.

The other Judges concurred.

Rule discharged with costs.

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3,3421 313 rol nem Fox v. Jones, Esq. and another.

34734. ziurt lunog In an action THIS was a rule calling upon the defendants, the Marshal against the marshal for an

and the Clerk of the Papers of the King's Bench Prison, escape, the

to shew cause why they should not produce to the plaintiff Court will compel the

and suffer him to take copies of a writ of habeas corpus and marshal to a committitur, relating to a prisoner who had escaped, and grant an inspection of the of whom the plaintiff was a creditor. It appeared upon habeus corpus the affidavit on which the rule was granted, that the plainand commit titur.

tiff had brought an action against the marshal for the escape of the prisoner; that in the course of the proceedings against the prisoner, a writ of habeas corpus, touching his custody, had been sued out, which, with the committitur, were afterwards lodged with the Marshal, and by him committed to the custody of the Clerk of the Papers of the prison; that it being necessary in the course of the present action to obtain a sight of these documents, the de fendants had been applied to, to produce them, and allow copies of them to be taken, but had refused to do so, where upon this rule was obtained.

Scarlett and Campbell shewed cause. This application cannot be granted, for the Marshal cannot be compelled to furnish evidence against himself, which this rule calls upon him to do. He ought not, in that respect, to be placed in a worse situation than other defendants. Nor is it neces-, sary for the plaintiff's interest that the Court should interfere in the way proposed, because he may proceed as other plaintiffs do, by serving the Marshal with a' notice to produce these documents at the trial, and in the event of his failing so to do, by giving parol evidence of their contents. The case of Cooper v. Jones (a) is decisive against the present application, where this Court refused to compel the Marshal to file a writ of habeas corpus, for the purpose of facilitating an action brought against him for an escape.

(a) 2 M. & S. 202.

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