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.

(b) 3 T. R. 452.

(c) 4 M. & S. 171; ante, 562, 3.
(d) 1 East, 352.

(e) 3 T. R. 452; ante, 565.
(f) The defendant was not ig-
norant of the fact of the residence
within the liberty, and his igno-
rance of the statute, which is de-
clared (sect. 24) to be a public
act, would not avail him; for igno-
rantia legis neminem excusat. Bil-

bie v.
liams v. Bartholomew, 1 B. & P.
322; Stevens v. Lynch, 12 East,
38; East India Company v. Trit-
ton, 5 D. & R. 214, 3 B. & C.
280, 290. This rule is borrowed
from the civil law, (D. lib. 22,
tit.6,) without, however, adopting
with it those equitable modifica-
tions by which the rule was origi-
nally accompanied, some of which

Lumley, 2 East, 471; Wil

it may be proper to state. “Juris ignorantia non prodest adquirere volentibus, suum vero petentibus non nocet," D. 22, 6, 7; or, as it is expressed by the commentators, "Juris error, ubi de damno evitando agitur, non nocet: ubi de lucro captando, nocet: error facti neutro casu nocet." "Minoribus 25 annis jus ignorare permissum est: quod et in fœminis in quibusdam causis propter sexus infirmi tatem dicitur; et ideo, sicubi non est delictum, sed juris ignorantia, non læduntur:" D. 22, 6, 9. And see Pothier, Traité de l'Action, Condictio indebiti, part. 2, sect. 2, art. 3. In Vernon's case, Mich. 20 Hen. 7, fo. 2, pl. 4, the defend. ants justified taking away the plaintiff's wife, on the ground that they were accompanying her to Westminster, to sue for a divorce in ease

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 (b). 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).

1

Lord TENTERDEN, C. J.-This is an application to enter a suggestion under 25 Geo. 2, c. 38. Taylor v. Blair 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 sucYou chuse to resist the action, and ought to

cessors.

pay the costs.

1828.

ANSTEE

v.

LILEY.

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 set aside for irregularity, with costs, the alleged irregularity being that execution was sued out upon the judgment, issue.

error may be treated as a nullity, and execution may

1828.

BRADLEY

V.

*

after the allowance of a writ of error, under which bail in error had been put in, which had not been excepted tons og boðin „tið vatn to shuv ɛ diiz Pitnielą odt GOMPERTZ. R. V. Richards shewed cause, upon an affidavit, stating that the bail were hired; that they were men in the vemployment of the tipstaff; that they had received money, the one 5s, and the other 4s. 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 and contended that, under such circumstances, the plaintiff was entitled to treat the bail as a nullity, and to sue out execution. He cited Ward v. Levi (a) as à 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).

W. Clarkson, contrà. The facts stated on the other side may be true, but the defendant has had 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

1

1828.

BRADLEY

v.

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 the plaintiff with a rule for better bail, or to have applied to the Court for leave to sue out execution, upon an affi-GOMPERTZ. - 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, J. on a similar application, made before him at chambers, and in which that learned judge, under circumstances very like the present, 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.],

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.

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.

1828.

In an action against the

marshal for an escape, the Court will

compel the marshal to grant an inspection of the habeas corpus

and commit

titur.

A

Lumos‚»ch, 14

de, cozgurtig W TO V

Fox v. JONES, Esq. and another.
1.8.7 Boy. 732

tung rot logines
THIS was a rule calling upon the defendants, the Marshal
and the Clerk of the Papers of the King's Bench Prison,
to shew cause why they should not produce to the plaintiff
and suffer him to take copies of a writ of habeas corpus and
a committitur, relating to a prisoner who had escaped, and
of whom the plaintiff was a creditor. It appeared upon
the affidavit on which the rule was granted, that the plain-
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 com-
mitted to the custody of the Clerk of the Papers of the
prison; that it being necessary in the course of the pre-
sent 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.

1

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 necessary 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.