suit, or discontinuance, the defendant shall not be arrested a second time without the order of a Judge. This is a sort of discontinuance; any Judge would have granted an order ex parte, and the plaintiff ought to have applied

to one.

BAYLEY, B.-This case is not within the rule: here is neither a nonpros, nonsuit, nor discontinuance. That rule only applies where the plaintiff is in default. Here, he has been deluded; he is in no fault, but he has been drawn in. The defendant is in fault.

VAUGHAN, B.-An arrest a second time on the same affidavit was held regular in Penfold v. Maxwell.

GURNEY, B.-The rule certainly does not apply to this case, where the defendant was only let out of custody from a motive of kindness, and on a condition which he never performed.

Rule discharged, with costs.

1833.

CANTELLOW

บ.

TRUEMAN.

CASH v. COCK.

THE defendant Cock was sued on an agreement, and Where judg

The

judgment was signed against him for want of a plea.
Court set aside that judgment, on the terms of the defen-
dant admitting the agreement. That rule was made
absolute on the 13th of June last, but it was afterwards
discovered that the defendant had died on the 3rd.
Michaelmas Term, the plaintiff obtained a rule to set aside

In

ment was signfendant, which

ed against a de

was afterwards set aside on the terms of paying costs; but the defendant hav

defer

ing died before the rule was

made absolute, the plaintiff got

that rule set aside, and commenced an action of sci. fa. on the judgment; the Court allowed the administrator to come in and defend in the name of the original defendant, and set aside all proceedings subsequent to the declaration, on payment of costs, except those of the rule to rescind.

1833.

CASH

v.

Соск.

the last rule, which was made absolute in Hilary Term; and the plaintiff subsequently commenced an action of scire facias on the judgment. The defendant, by his will, appointed four persons executors, two of whom were in Barbadoes, and one in Scotland; they all renounced, and administration was taken out by two sisters, in February.

Jeremy, under these circumstances, obtained a rule nisi on behalf of the administratrixes, calling on the plaintiff to shew cause why the last rule of Court should not be rescinded, and all proceedings subsequent to the declaration set aside, they undertaking not to take advantage of the death of the defendant, and to admit what the defendant had before undertaken to admit.

Wightman shewed cause.-The defendant, in his lifetime, obtained a rule to set aside the judgment on payment of costs; but they were not paid. The judgment was obtained more than a year ago. The Court will not allow such a motion, except on the terms of their pleading to merits, and not taking advantage of the statute of limitations or want of assets, and paying all the costs.

Jeremy. The costs were tendered before they moved to rescind the rule for setting aside the judgment.

Per Curiam.-We think it is reasonable to grant this application; but it can only be on the terms of paying the costs which the defendant was liable to pay, and of this application, but not of the motion to rescind, as we think that was unnecessarily made till administration was taken out. No further restrictions ought to be imposed now than what the defendant was under in his lifetime.

Rule absolute.

1833.

The KING . The Sheriff of MIDDLESEX, in DUNCOMBE v.

CRISP.

Special

tice of bail omit

ted to state the residences of months, and

the bail for six

whether they were house

Keepers or
Held, that this

freeholders:

was not such a

defect as entitled

the plaintiff to

ERLE shewed cause against a rule which had been ob- Where the notained by Price for setting aside an attachment against the sheriff for irregularity. The defendant was arrested on a quo minus, returnable on the 15th of April. The defendant gave a bail-bond to the sheriff of Middlesex; on the 18th the plaintiff declared conditionally. bail was put in on the 19th; the bail-piece was filed at the Exchequer-office, and notice of bail served on the plaintiff's attorney. The notice of bail stated the names of the bail, and the streets in which they lived, but did not give their residences for six months, nor describe them as housekeepers or freeholders. The plaintiff, treating the notice as a nullity, ruled the sheriff on the 19th to bring in the body. Notice of taxation was given, and on the 29th costs were taxed. The attachment was returnable on April 30th. The rule for setting aside the at- can tachment was moved for on the 1st of May.

Erle contended that the attachment was regular.—No such notice of bail was given as is required by the rule of Court (a), and the plaintiff was, therefore, right in treating it as a nullity. The notice was defective in a most material particular. But, if the notice can be considered as irregular only, then this application is too early, for, we are still in time to except. They have also allowed three or four different steps to be taken by us instead of moving to set aside the attachment in the first instance.

BAYLEY, B.-You were not bound to except unless you chose; and you can except now if you are in time: but

(a) Reg. Gen. T. T. 1 Will. 4, s. 2; ante, Vol. 1, p. 103.

treat it as a nullity, and an atagainst the sher

tachment

iff was set aside. Where, on

moving to set aside proceedings for irregu larity, the rule does not pray for costs, the Court cannot give them.

1833.

The KING

V.

The Sheriff of
MIDDLESEX.

there is no authority to shew that such a notice may be treated as a nullity; it is irregular, and liable to be vacated; but the defect should have been pointed out to the defendant. Bail were put in in due time; there was no exception, and they were not bound to justify unless you excepted; neither had you any right to move for an attachment till the time for justification had expired. The rule must be absolute (a).

Price applied for the costs of the motion. The motion was, why the attachment should not be set aside on notice being given. His affidavit, he said, shewed not only an irregularity, but that the affidavits on the other side were

untrue.

BAYLEY, B.-If the rule had prayed for costs, it would have been absolute with costs. We cannot give you more than you ask. You asked all that was prudent. If the costs had been asked for they would have been in the rule. I consider it as the clear and settled practice of the Court, that we cannot give more than has been asked for. Where a party asks to set aside proceedings for irregularity no costs are given.

Rule absolute, without costs.

(a) See the case of Lowe v. Galloway, 5 Taunt. 663, where the affidavit of the sufficiency of bail, and the affidavit of acknowledgment, were made in the name of a cause of John Lowe v. Galloway, instead of William Lowe v. Galloway; and the plaintiff, treating them as nullities, gave no notice of exception, and commenced proceedings on the bail-bond, in due time; the bail entered into a recognizance in the right name of

William Lowe v. Galloway; and the Court, on application, set aside the proceedings which the plaintiff had taken on the bailbond. And in Bell v. Foster, 8 Bing. 334; 1 Moore & S. 518, S. C., it was expressly held, that the omission to describe the bail as housekeepers or freeholders did not render the notice a nullity, so as to entitle the plaintiff to take an assignment of the bailbond.

1833.

WADDINGTON v. PALMER.

Six calls to serve

a writ on a de

fendant, and the

only answer obtained was, that

PAYNE moved for a distringas. Six attempts had been made during six weeks to serve the defendant, by calling at the house where he lived. Sometimes the answer was, that he was out of town, at other times, that he was very seldom there, that he would be back in a fortnight, &c. not sufficient to A copy was left and the writ explained, and notice given that a distringas would be moved for.

Per Curiam.-That will not do; from first to last he is said to be in the country.

he was out of town:-Held,

get a distringas.

Rule refused.

BROOK and Another v. COLEMAN.

An affidavit of

exchange not amount for

stating the

which the bill was drawn:

IN this action, Gaselee, J., had made an order, that, on en- debt on a bill of tering a common appearance, the bail-bond should be delivered up to be cancelled, unless the Court of Exchequer should otherwise order, and then the defendant should have six days' time to put in bail. The affidavit on which Held, bad. the defendant was arrested, was in this form-" J. W., of &c., maketh oath and saith, that Eleanor Coleman is justly and truly indebted to

Brook and signees of the estate and effects of.

Watson, as as-, a bankrupt, in

517.9s., upon and by virtue of a certain bill of exchange, drawn by the said bankrupt antecedently to the fiat of bankruptcy issued against him, upon and accepted by the said E. Coleman, payable two months after date, and now remaining due and unpaid." The objection to the affidavit was, that the amount for which the bill was drawn was not specified, nor the date, nor to whom payable, The plaintiffs were assignees of the bankrupt.