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1833.

SPRIGGE

Per Curiam.--We think the plaintiff did wrong in getting the cause tried in the way he did; and the rule for a new trial will therefore be made absolute, without payment of costs.

Rule absolute.

RUTHERFORD.

Doe d. Frith v. Roe. DOWLING moved for judgment against the casual The usual entry ejector.— It was the case of a vacant possession; and the cant possession peculiarity in the case was in the mode of making the entry, will in certain

cases be disThe usual mode of effecting the formal entry in such a pensed with. case was by putting the finger into the key-hole; but here there was no key-hole in the door, and therefore the person seeking to make the entry could not put his finger in; the entry, therefore, was by standing on the threshold of the house, and laying hold of an iron bar attached to the door.

LittleDALE,J.-That will do, under the circumstances.

Rule granted.

no

Wilson's Bail. WALLINGER opposed bail, on the ground that he A notice of bail

describing him was misdescribed in the notice of justification. The

as a housekeeptice of justification described the bail as "a housekeeper." er is insufficient, On examination, however, he admitted that he was not a lodger, although

on examination "housekeeper," but a mere “lodger.” On further ex- itappears that he amination, however, he stated that he had a freehold.

is a freeholder.

Comyn, in support of the bail, submitted, that although the bail had been described as a housekeeper in the notice

1833.

of justification, yet, as it appeared on the bail coming up to justify that he was a freeholder, it was sufficient.

Wilson's

Bail.

Wallinger contended, that, as the rule of Trinity Term, 1 Will. 4, required the notice to state whether the bail was a housekeeper or freeholder, it could not be said that there had been a compliance with that rule, when a person who was a lodger had been described as a housekeeper. If he had been described in the notice of justification as a freeholder, it would have been different. If he were a freeholder, that was a sufficient qualification, in one point of view, to become bail. But the mere' fact of the bail's being a freeholder appearing on the examination could not render the notice good. Whether he was a freeholder or a housekeeper must appear in the notice. Proof of the bail being a "freeholder” could be no support of the descrip

housekeeper" in the notice of justification.

tion"

LITTLEDALE, J., was of opinion that the bail had been improperly described in the notice of justification. He was a lodger, and he was described as a housekeeper. The fact of his being a freeholder could make no difference. Perhaps it might have been different under the old rules; but the rules of Trinity Term, 1 Will. 4, were peremptory. The bail must, therefore, be rejected.

Bail rejected.

Rex v. The Sheriff of MIDDLESEX, in Watts v. HAMILTON.

(Before the four Judges.) If the sheriff is MILLER shewed cause against a rule for setting aside required by a Judge's order to an attachment against the sheriff for not bringing in the bring in the boo body. It appeared that the defendant had been arrested dy in vacation, and he does not obey it in due time, but, before an attachment is obtained, the defendant is rendered, the contempt is not purged, and he is still liable to an attachment. The Court will, however, set it aside, on payment of costs, and not order it to stand as a security where the plaintiff has not lost a trial.

1833.

Rex

The Sheriff of
MIDDLESEX

on a writ of capias, and that the sheriff had been required by a Judge's order to return the writ. His return was, "cepi corpus." A Judge's order to bring in the body was then obtained, which expired during the vacation. This order was not obeyed until the 2nd November, the first day of Michaelmas Term, when special bail was put in, and they forthwith rendered the defendant. On the Srd of November, the Judge's order was made a rule of Court, and an attachment against the sheriff for not bringing in the body obtained at the same time.

Holt afterwards obtained a rule nisi, for setting aside the attachment.

Cause was now shewn against that rule by Miller. He contended, that the attachment was clearly regular, although the defendant had been rendered before it was obtained. By 13 Reg. Gen. M. 3 Will. 4, it is ordered, “That in case a Judge shall have made an order in the vacation for the return of any writ issued by authority of the said act, or any writ of ca. sa., fi. fa., or elegit, on any day in the vacation, and such order shall have been duly served, but obedience shall not have been paid thereto, and the same shall have been made a rule of Court in the term then next following, it shall not be necessary to serve such rule of Court, or make any fresh demand of performance thereon; but an attachment shall issue forth with for disobedience of such order, whether the thing required by such order shall or shall not have been done in the meantime.” The fact, therefore, of the defendant having been rendered before the attachment was obtained, could not operate to purge the contempt of the sheriff.

Parke, J.-It is clear from the language of the rule, that rendering the defendant, when obedience in due time has not been yielded by the sheriff to the order, does not VOL. II.

D. P. C.

GG

1833.

Rex

prevent the consequence of his contempt, although the attachment is not obtained until after obedience has been yielded.

The Sheriff of
MIDDLESEX.

Holt, in support of the rule, submitted, that the rule for setting aside the rule for an attachment ought to be made absolute; first, because the sheriff had done all in his power to purge the contempt; and, secondly, that the plaintiff not having declared, no injury had accrued to him, for he had not lost a trial.

Per Curiam. It is clear that the contempt is not purged by the render, even though it has been made before the Judge's order was made a rule of Court, or an attachment obtained for disobedience to the Judge's order. The attachment, however, may be set aside on payment of costs.

Miller contended, that the attachment ought to stand as a security.

Per Curiam.—As the plaintiff has not declared, and has consequently not lost a trial, we think it should not stand as a security (a).

Rule absolute for setting aside the attachment,

on payment of costs.

(a) By 5 Reg. Gen. M. T. 2 have declared de bene esse, and Will. 4, it is ordered, “ That, up- shall have been prevented, for on staying proceedings, either want of special bail being perfectupon an attachment against the ed in due time, from entering his sheriff for not bringing in the bo- cause for trial, in a town cause, dy, or upon the bail-bond on per- in the term next after that in fecting bail above, the attach- which the writ is returnable, and, ment or bail-bond shall stand as in a country cause, at the ensuing a security, if the plaintiff shall assizes."

1833. Price v. Thomas James. HALL shewed cause against a rule nisi for setting aside where the

Christian and an order of reference obtained by Mansel, on the ground

surname are that, in the order of reference, the names of the defen- transposed by

mistake in an dant were transposed. The original action brought was order of refer

ence, the Court “Price v. Thomas James,” but in the order of reference will allow that

» mistake to be the names of the defendant were put " James Thomas.' That transposition, he contended, was immaterial, and he cited Doe d. Phillip Worthington and James Worthington v. Butcher (a). In that case the declaration was intitled Doe on the demise of Phillip Worthington and James Worthington v. Butcher;" and the affidavit of service described the cause as Doe on the demise of James Worthington and Phillip Worthington v. Butcher.The Court there held that this was a mere clerical mistake, and granted a rule for judgment. In Elvin and Another v. Drummond (6), the plaintiffs declared on a writ of the King. The writ produced in evidence was in the name of George the 3rd, but tested in the name of Best, Chief Justice, and indorsed with the date of 1826. The Court there were clearly of opinion that the writ being tested in the name of the present Chief Justice, and being indorsed with the date 1826, there was no material variance between the writ declared on and that produced in evidence. If, however, the variance were fatal, the plaintiff was estopped from taking any objection, as he had acted on the order by appearing before the arbitrator. But, if the Court should be of opinion that the plaintiff was in a situation to take advantage of this mistake, it might be amended. He cited Wright qui tam &c. v. Horton (c). There the entry of the similiter or the plea of nil debet was in the name of the defendant instead of the plaintiff. The Court there al

amended.

(a) 2 Chit. Rep. 174. (6) 12 Moore, 523; 4 Bing. 278.

(c) 6 Mau. & Sel. 50.

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