objection was valid, the bail bond on that ground could not be delivered up to be cancelled. The utmost that could be gained by this rule was a stay of proceedings. ABBOTT C. J. There is no doubt that the exception ought to be entered according to the practice of the Court, and I do not think the defendant waives his objection by having acted upon the notice merely, and therefore I think the proceedings irregular. There is something which the plaintiff ought to have done, which he has not done. At the same time, however, I think the defendant's rule is too large in calling upon the Court to set aside the bail bond. That part of the rule which relates to the stay of proceedings must be made absolute, but as to the other it must be discharged.. Rule absolute accordingly. 1819. HODSON against GARRETT. LANE against SEWELL. WILDE moved to make a rule absolute, calling upon the sheriff of Cornwall to refund 47. 8s. and to pay the costs of the application. It appeared that the under-sheriff, upon receiving a special jury process, had received eight guineas as his fee for executing it. The Master, upon the subsequent taxation of the costs, had allowed only 31. for the sheriff's fee. Two applications had been made to refund the difference, before the present application. (a) Vide Pearson v. Maynard, 1 Taunt. 416. where the Court refused to allow the expenses of sheriff of Yorkshire in summoning knights to appear at Westminster in a real action. The sheriff cannot maintain an action for expenses in keeping possession of goods under fi. fa. at request of plaintiff. Bilke v. Havelock, 3 Campb. 374. 2 M. & S. 294. And see Imp. K. B. 8th ed. 378. as to fees on special jury. 1819. LANE against SEWELL. Raine shewed cause upon an affidavit, stating, that the sheriff, upon account of the distance the jurors resided from each other, had been under the necessity of issuing summonses to seven different bailiffs, to each of whom he had been obliged to pay sums that left him nothing for himself, and prayed that it might be referred to the Master, to see if the sum taken was unreasonable. The COURT conferred with the Master, and stated, that the Master did not allow a fee with reference to the trouble in each particular case, but upon a general average; and as the course proposed would lead to additional trouble and expense in every case, it could not be granted. With regard to the statement, that the expenses to which the sheriff had been put, left him no remuneration for himself, the Court said it was not necessary he should have any, that summoning the jury was part of his general duty as sheriff. The rule was therefore made absolute with costs. Wednesday, The Court will not discharge a CRADOCK against DAVIS. CHITTY on a former day obtained a rule calling on the plaintiff to shew cause why the rule for a special jury where there jury in this case should not be discharged on an affidavit, rule for special is sufficient reason to believe stating that the action was brought for goods sold and to the defendant delivered, after indulgence given, for which a bill of that it is material to have his case tried by a special jury. (a) (a) In C. P. the Court will not discharge a rule for a special jury, where it has been regularly obtained, but where delay is suggested as the motive for obtaining the special jury, and not satisfactorily denied, the cause will be directed to be tried at the sittings in Term, unless such terms are offered as will obviate the objection. Bloxam v. Brown, 4 Taunt. 470; Tidd, 6 ed. 841. The application to try the cause at the sittings in Term must be made to the judge at Nisi Prius. Johnson v. Coke and Gas Light Company, 7 Taunt. 390. exchange had been taken, and therefore it was contended that this was not a case which need be tried by a special jury. Wilde shewed cause against the rule, and urged that as the bill of exchange had been given under very peculiar circumstances, it might furnish the defendant with a very just ground of defence; and as it was sworn to be material to him to have the case tried by a special jury, the Court would not deprive him of the advantage of having his cause tried in that manner. Chitty in support of his rule said, that as the bill of exchange had been given in payment of the goods for the price of which this action was brought, it was decisive evidence that the defendant had promised to pay; and therefore it could not be said that this was a fit case to be tried by a special jury. The COURT said that there might be circumstances, subsequent to the drawing of the bill, material to the defendant in the present action, and from what had been stated there seemed to be no reasonable ground for depriving the defendant of the advantage which he sought in having his case tried by a special jury. Rule discharged. 1819. CRADOCK against DAVIS. N 1819. Wednesday, The present defendant ob tained a judgment against the plaintiff in C. B. for 12l. the lat ter having suffered judgment to go by default, although he had a claim against the defendant for 10l. which he neglected to set off in that action. He now brought an action in K. B. to recover that de mand, and the Court held that as the defendant had offered to allow the plaintiff the 10l. he might obtain a rule for judgment as in case of a non CHAPMAN against DRUNNING. A RULE nisi having been obtained in this case for judgment as in case of a nonsuit, Gurney now shewed cause, and suggested that the defendant in this case had brought an action against the plaintiff in C. B. where he recovered a verdict and obtained judgment for 127. and costs. It appeared that he was himself indebted to the plaintiff in the sum of 10/. but no set-off had been pleaded in that action. The plaintiff in the present action had tendered the debt and costs upon that judgment, no credit being given to him for the 107. which the present defendant owed him, and his clerk gave a receipt for the money. The present action was therefore brought to recover the 107. which had been disallowed on settling the other case. The affidavit now offered in shewing cause stated, that the defendant's attorney had told the plaintiff's attor suit, unless the plaintiff would either give a peremptory undertaking to try at the next sittings, or discontinue the action and pay costs. (a) (a) Where a defendant has a set-off against the plaintiff, and does not appear at the trial, the plaintiff may either take a verdict for the whole sum he proves due, subject to be reduced to the sum due on the balance of accounts, if the defendant will afterwards enter into a rule to bring no action for the set-off, or he may take a verdict for the smaller sum, with a special indorsement on the postea, as a foundation for the Court to stay proceedings, if another action should be brought for the amount of the set-off, Laing v. Chatham, 1 Campb. 252. The practice of giving judgment as in case of a nonsuit, is regulated by the 14 Geo. 2. c. 17. which enacts, that where any issue is joined in any action, and the plaintiff neglect to bring the issue on to be tried according to the course and practice of the Court, it shall be lawful for the Judge or Judges of the Courts respectively, at any time after such neglect, upon motion made in open Court after notice, to give the like judgment for the defendant in such action as in cases of nonsuit, unless the Judge or Judges shall upon just reasonable terms allow any further time for the trial of such issue. See the decisions upon the act, Tidd, 6th ed. 820, 1, &c. ney after he had received the debt and costs in the former case, that he had deceived his clerk by inducing him to take a receipt for the debt and costs without deducting the 107. and that he might proceed with the present action at his peril, for he would move for judgment as in case of a nonsuit. Under these circumstances he submitted that this rule must be discharged with costs. Chitty, contrà, urged, that as the plaintiff had neglected to plead the set-off in the Court of Common Pleas, and had suffered judgment to go by default, he was not now at liberty to bring the present action to recover the 107. which he might have claimed on the adjustment of the first action. The affidavits on the part of the defendant positively swore that the defendant was always ready and willing to allow the plaintiff the 107. in account. BAYLEY J. It appears to me, that if the plaintiff in this action had pleaded a set-off to the defendant's action in the Common Pleas, he would have had no cause of action at the time he commenced these proceedings. The plaintiff therefore was wrong originally, for had he pleaded a set-off the defendant must in all events have had a verdict for the balance. By bringing his action afterwards, having missed the opportunity of getting his demand allowed, he is entitled to no indulgence. Upon the plaintiff's own shewing, there is nothing in this case to be tried, and therefore he should either give a peremptory undertaking to try at the sittings after the present Term, or discontinue the action upon payment of costs. The rule was discharged upon the latter alternative. 1819. CHAPMAN against DRUNNING. |