1834. MORTIMER v. PIGGOTT dant. If it had been a mere irregularity, the case might have been different (a). 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., con curred. Rule absolute. (a) Wilson v. Bacon, ante, p. 450; though the case of a pri soner. Primrose v. Baddeley, ante, p. 350. END OF TRINITY TERM. 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 terms of bringing the amount of the verdict into Court; and the rule nisi was drawn up for a new trial, on bring ing in the money. nis for a new trial is granted on the terms of bringing the amount of the verdict into Court, the money must be brought in be Jervis contended, that the money ought to have been fore the rule brought in before the rule was drawn up. nisi is drawn up, Curwood, contrà. The Court said, the money ought to have been brought in at once, and granted the rule. Rule granted. RUSTON V. GREENE and ROBSON. London as well as a country commission, the 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 this action, why the time for rendering Greene should not be enlarged. Judgment by confession for 2007. was obtained against Greene last Hilary Term, and a scire facias had since issued against the bail. In the meantime, Court, on behalf of bail, will, to venience, allow the time for the render to be enlarged. prevent incon 1834. RUSTON บ. GREENE. a fiat of bankruptcy had issued against Greene, and he had been summoned to attend the commissioner. PARKE, B.-How can you distinguish this from former cases? Watson. This is a town commission. Maude v. Jowett (a), Crump v. Taylor (b), 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. 1834. ASTLEY V. GOODJER. HUMFREY moved for a rule nisi for a habeas corpus to bring up the body of the defendant from Northamptonshire gaol. The motion was grounded on an objection to the warrant, by virtue of which the defendant was taken to gaol. It omitted to state out of what Court the process issued; which, he contended, was material. It was always 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 VOL. II. (a) Appendix, ann. 1833, p. 274. TT D. P. C. It is not neces sary that the sheriff's warrant issued upon a capias should specify the Court out of which the pro cess issues. 1834. ASTLEY v. GOODJER. livers the prisoner with the warrant to the gaoler, which is the authority for him to detain. If no copy had been delivered 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. VAUGHAN and BOLLAND, BS., concurred. Rule refused. A motion to after a lapse of FYNN v. KEMP. HOGGINS had obtained a rule nisi for setting aside the declaration and subsequent proceedings for irregularity, the plaintiff having declared de bene esse on the 15th, and on the next day an appearance was entered. 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. |