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1834.

dant. If it had been a mere irregularity, the case might
have been different (a).

MURTIMER

PIGGOTT

Lord Denman, C.J.-As by the direct words of the statute a sci. fa. appears to be necessary, we must consider the plaintiff's proceeding a nullity. This not being the case, the lapse of time does not bar the right of the defendant to avail himself of the objection.

LITTLEDALE, J., TAUNTON, J., and WILLIAMS, J., concurred.

Rule absolute.

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617

COURT OF EXCHEQUER,

Easter Term,

IN THE FOURTH YEAR OF THE REIGN OF WILLIAM IV.

CLARE v. Fiestel.

1834. J. JERVIS moved to discharge a rule nisi for a new Where a rule trial obtained by Curwood. The rule was granted, on the nisi for a new terms of bringing the amount of the verdict into Court;

on the terms of

bringing the and the rule nisi was drawn up for a new trial, on bring- amount of the ing in the money.

Court, the money must be

brought in beJervis contended, that the money ought to have been fore the rule

nisi is drawn up brought in before the rule was drawn up.

verdict into

Curwood, contrà.

The Court said, the money ought to have been brought in at once, and granted the rule.

Rule granted.

as a country

RUSTON u. GREENE and ROBSON. W. H. WATSON shewed cause against a rule which in the case of a had been obtained by J. Jervis, on behalf of the bail in London as well this action, why the time for rendering Greene should not cominission, the be enlarged. Judgment by confession for 2001. was ob- of bail, will, to tained against Greene last Hilary Term, and a scire fa- venience, allow

prevent inconcias had since issued against the bail. In the meantime, the time for the

larged.

1834.

a fiat of bankruptcy had issued against Greene, and he had been summoned to attend the commissioner.

RUSTON

GREESE.

PARKE, B.-How can you distinguish this from former cases ?

Watson. This is a town commission. Maude v. Jowett(a), Crump v. Taylor (6), and Glendining v. Robinson (c), were cases of country commissions. In Harris v. Alcock (d), which was also a case of a country commission, Bayley, B., required an affidavit that it would be inconvenient for the commissioners to attend at Warwick or London to take the bankrupt's examination. Here, the bankrupt might be taken to Basinghall Street on a commissioner's warrant under the 6 Geo. 4, c. 16, s. 119, if it should be necessary.

Parke, B.-There is no case where a distinction has been made between town and country commissions. I have never known such a distinction taken, and I think there is no ground for the distinction.

Alderson, B.—The inconvenience would be as great in a town commission as in a country one.

BOLLAND and GURNEY, Bs., concurred.

Rule absolute, on payment of costs (e).

(u) 3 East, 145.
(6) 1 Price, 74.
(c) 1 Taunt. 320.
(d) 2 C. & J. 486. Ante, Vol.

1, p. 568, S. C.

(e) See the late case of Coombs v. Dod, 3 Moore & Scott, 817, contrà.

1834.

Court out of

ASTLEY v. GOODJER. HUMFREY moved for a rule nisi for a habeas corpus to It is not necesbring up the body of the defendant from Northampton- sheriff's warrant shire gaol. The motion was grounded on an objection to issued upon a the warrant, by virtue of which the defendant was taken specify the to gaol. It omitted to state out of what Court the process which the proissued; which, he contended, was material. It was always cess issues. inserted in the old forms previously to the Uniformity of Process Act. In Tidd's Appendix (a), a form of warrant is given on process under the new Process Act, which expressly says, “ By virtue of the King's writ, issued out of his Majesty's Court of King's Bench," &c. No form of warrant is given by the act itself.

Lord LYNDHURST, C. B.-It proceeds thus: “ And I further command you, that, on execution hereof, you do deliver to him the copy of the said writ herewith delivered to you.” The writ, therefore, will inform the defendant out of what Court the

process issues.

Humfrey.—The warrant is directed to the keeper of the gaol, and A. B., my bailiff; but only one copy of the writ is given, and both cannot have it; and the one who detains the defendant may not have the copy of the writ. The defendant may be inconvenienced by not knowing where to appear; and the warrant ought to have all necessary particulars.

Lord LYNDHURST, C. B.—It is only a direction by the sheriff to the officer. How can it be material to the defendant? The officer is to arrest, and the gaoler detain: the gaoler would have no right to detain till the warrant was delivered to him. The officer having made the arrest de

(a) Appendix, ann. 1833, p. 274.

VOL. II.

TT

D. P. C.

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livers the prisoner with the warrant to the gaoler, which is
the authority for him to detain. If no copy had been de-
livered to the defendant, that might be a ground for the
motion ; but it is not suggested here that no copy of the
writ was given, and the defendant would know from that
in what Court to appear.

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VAUGHAN and BOLLAND, Bs., concurred.

Rule refused.

FYNN v. KEMP. HOGGINS had obtained a rule nisi for setting aside A motion to set aside pro- the declaration and subsequent proceedings for irregulariceedings for irregularity was ty, the plaintiff having declared de bene esse on the 15th, held too late after a lapse of and on the next day an appearance was entered. seven days.

R. V. Richards shewed cause, and objected that the motion was out of time, not having been made till the 22nd, the irregularity, if any, having occurred seven days before, in full term.

Hoggins.The motion was made before the time for pleading was out.

PARKE, B.—You must always come before the next step (however short the time for doing it) is taken, and in a reasonable time.

Per Curiam.-We think you are too late.

Rule discharged, with costs.

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