1833.

DAVIS

V.

GOMPERTZ.

the Marshal's book, so that the defendant might be discharged on payment of the two several instalments.

The Master drew up the form of the entry accordingly.

an action of

ejectment in an

DOE d. STANSFIELD . SHIPLEY.

A judgment in MILLER applied, under the 19 Geo. 3, c. 70, s. 4, to remove a judgment, in an action of ejectment, out of the inferior jurisdic- county court of Nottingham, on the ground that the defendant had removed himself out of the jurisdiction, and

tion is not

within the

meaning of the

19 Geo. 3, c. 70, had no effects within it.

s. 11; and, therefore, if the

defendant leaves the jurisdiction, the judgment cannot be removed into a

LITTLEDALE, J.-I feel some doubt, whether a judgment in ejectment comes within the meaning of the statute under which you apply. I will, however, look into the superior Court. act of Parliament, and tell you my opinion.

Cur, adv. vult.

LITTLEDALE, J.-This was an application by Mr. Miller to remove a judgment out of the county court of Nottingham, in an action of ejectment, pursuant to the 19 Geo. 3, c. 70, s. 4. My doubt was, whether this was a case coming within the statute. The recital of section 4 is, that "forasmuch as persons served with process issuing out of inferior courts, where the debt is under 10l., may, in order to avoid execution, remove their persons and effects beyond the limits of the jurisdiction of such courts." The recital, therefore, only applies to the case of a "debt" under 10. Then the enacting part proceeds, "that in all cases where final judgment shall be obtained in any action or suit in any inferior court of record, it shall and may be lawful to and for any of his Majesty's courts of record at Westminster, upon affidavit made and filed therein, of such judgment being obtained, and of diligent search and

of

inquiry having been made after the person or persons
the defendant or defendants, or his, her, or their effects,
and of execution having been issued against the person or
persons or effects, as the case may be, of the defendant
or defendants; and that the person or persons or effects
of the defendant or defendants are not to be found within
the jurisdiction of such inferior court, which affidavit may
be made before a judge or commissioner authorized to
take affidavits; and such superior Court to cause the
record of the said judgment to be removed into such
superior Court, to issue writs of execution thereupon
to the sheriff of any county, city, liberty, or place, against
the person or persons or effects of the defendant or de-
fendants, in the same manner as upon judgments obtained
in the said Courts at Westminster." It will be observed,
that the words of the enacting part are more general than
those of the preamble, because they refer to "any action
or suit." Now, there are some cases in which the pream-
ble may control the enacting part of a statute; but as this
act is for the relief of persons who have been deprived of
an effectual remedy, in consequence of the defendant re-
moving out of the jurisdiction, I think that the preamble
ought not to control the enacting part. So far, I should
say then that there would be no difficulty in removing the
judgment under the general words of the act. But the
only remedy which the superior Court could give would
be, by the language of the enacting part, "against the per-
son or effects" of the defendant; and which does not enable
the superior Courts to grant a habere facias possessionem.
Such a writ would be the proper remedy, if the judgment
were removed; but that cannot be considered as a remedy
against the "person or effects" of a defendant; and, there-
fore, as such a remedy is not expressly provided, it ap-
pears to me that the Court cannot direct the judgment to
be removed.

Rule refused.

1833.

DOE d. STANSFIELD

v.

SHIPLEY.

1833.

Where a de

fendant has

SMITH V. JOY.

THESIGER shewed cause against a rule for judgment

given a cognovit as in case of a nonsuit. It appeared by the affidavit on

for the debt

sought to be recovered in an action by the

plaintiff, and the

which he opposed the rule, that the defendant, with the knowledge of his attorney, had, a considerable time before the rule was obtained, given a cognovit for the amount of the debt. He contended, that, on these facts, the rule ought trial, and the de- to be discharged, with costs to be paid by the attorney.

plaintiff does

not proceed to

fendant obtains

a rule for judgment as in case of a nonsuit,

that rule will be discharged with

costs.

LITTLEDALE, J.-The rule must be discharged, and with costs to be paid by the defendant, not the attorney, as it appears he was not a party to the settlement of the claim by the cognovit.

Rule discharged, with costs.

JONES v. PRICE.

The provision PLATT shewed cause against a rule obtained by Arch

of the Unifor

mity of Process Act, as to the

indorsement on

a writ of de

tainer of the

amount for

bold for setting aside a writ of detainer, on the ground of irregularity. The irregularity complained of was, that the sum for which the defendant was detained had not been indorsed on the writ. The sum, however, had been inwhich the de- dorsed, but struck out by the attorney. It could not be of any consequence whether it was indorsed or not, as the language of the act of the 2 Will. 4, c. 39, was only directory.

fendant is to be

detained, is compulsory, and not merely di

rectory.

Archbold, in support of the rule, cited sect. 8 of the 2 Will. 4, c. 39; the language of which was, " that when it shall be intended to detain in any such action any person being in the custody of the Marshal of the Marshalsea of the Court of King's Bench, or of the Warden of the Fleet prison, the process of detainer shall be according to the

form of the writ of detainer contained in the said schedule, and marked No. 5; and a copy of such process, and of all indorsements thereon, shall be delivered, together with such process, to the said Marshal or Warden, to whom the same shall be directed." At the end of the writ contained in the schedule, a direction is introduced that "this writ is to be indorsed in the same manner as the writ of capias, but not to contain the warning on that writ." The writ of capias was indorsed with the amount of the debt, of which the plaintiff had made oath. By rule 10, M. T. 3 Will. 4, it was ordered, "That if the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof, any of the matters required by the said act to be by him inserted therein or indorsed thereon, such writ or copy thereof shall not on that account be held void, but may be set aside as irregular, upon application to be made to the Court out of which the same shall issue, or to any judge." Nothing, therefore, could be more positive than the statute, and the rule promulgated in furtherance of it.

LITTLEDALE, J.-The act itself is positive, and the rule of Court confirmatory of it is equally positive. The writ, therefore, not having the sum indorsed, is irregular, and must be set aside. The present rule, therefore, will be absolute, with costs.

1833.

JONES

v.

PRICE.

Rule absolute, with costs.

VOKINS v. SNELL.

MILLER moved for judgment as in case of a nonsuit, Where a plainabsolute in the first instance. The plaintiff had given no

tice of trial, but did not proceed according to it. A rule

tiff has given a

peremptory un

dertaking (but

not by rule), the rule for judgment as in

case of a nonsuit for not fulfilling that undertaking is nisi in the first instance.

1833.

VOKINS

V.

SNELL.

for judgment as in case of a nonsuit having been obtained, it was subsequently discharged, the plaintiff giving a peremptory undertaking to proceed to trial at the next assizes, but without a rule for that purpose.

Littledale, J.-I think the rule for judgment as in case of a nonsuit cannot be absolute in the first instance in this case, as the peremptory undertaking was not given under the authority of a rule of Court. If it had been by rule, it would be different.

Rule nisi granted.

In order to ren-
der good the
service of a de-
claration, by
sticking it up in
the King's
Bench Office,
more than one
attempt must
be made to find

FRY V. ROGers.

PLATT moved for a rule to shew cause why service of a declaration, by sticking it up in the King's Bench Office, should not be deemed good service. The action was for goods sold and delivered. The defendant had lived at 21, Bream's Buildings, Lambeth, when the debt was contracted, and when the process was served. Every possible the defendant. inquiry had been made of the neighbours, butchers, bakers, and other tradesmen, but they knew of no such person as the defendant, and the house was uninhabited.

Littledale, J.-It does not appear that you have been there more than once. You have not made sufficient inquiries. No due diligence has been used to find the defendant out. I think the plaintiff has not done enough.

Rule refused.