DETERMINED ON

POINTS OF PRACTICE.

COURT OF EXCHEQUER.

Easter Term,

IN THE THIRD YEAR OF THE REIGN OF WILLIAM IV.

PRICE v. Bower.

1833.

To found an apdistringas, it

plication for a

must be shewn that the defen

dant is at home or in the neigh

GODSON applied for a distringas. Four attempts had been made to serve the defendant by calling at his house, and, on each occasion, a copy was left. The answer was, that he was not at home, and that it was not known when he would be. Inquiries had been made of two persons about the place, (whose names were not mentioned), and ing the time who stated that the defendant kept out of the way. This, calls to serve deponent said, he believed to be true.

BAYLEY, B.-That is not enough; it must be shewn from the answers given, or otherwise, that the defendant is at home or in the neighbourhood during the time you go.

VOL. II.

B

Rule refused.

bourhood dur

that the party

him.

1833.

Where a defendant, being in custody on mesne process,

was discharged

on the terms of

his giving bills, which he neglected to do, and the plain

tiff arrested him again without a

a Judge's order, the second ar

rest was held to be regular.

CANTELLOW v. TRUEMAN.

ARCHBOLD obtained a rule nisi for discharging the defendant out of custody, on the ground of his having been irregularly arrested a second time for the same cause of action, and that the plaintiff should pay the costs. Against which

W. H. Watson shewed cause.-The defendant was first arrested on the 16th of March; and a person of the name fresh affidavit or of Church applied to the plaintiff to let the defendant out of custody, and promised to get the acceptances of a Mr. Harrison for the amount, by post; the plaintiff, in consequence, agreed to discharge the defendant, and he was let out of custody: no bills, however, were given, and afterwards the defendant called and begged for time. Ultimately he was arrested again on the 6th of April. All these circumstances were stated before Gurney, B., on a summons taken out to discharge the defendant; but the learned Judge refused to do so. The defendant was only discharged on the terms of giving bills, which he neglected to do. There was no precise time for giving them, but we waited a reasonable time. He cited Puckford v. Maxwell (a) and Penfold v. Maxwell (b), where a second arrest was held regular, the defendant having failed to comply with the conditions on which he was let out of custody. Here, there was an express understanding that the defendant's discharge was to depend on his giving the bills.

Archbold, in support of the rule.-If the plaintiff was entitled to arrest the defendant at all a second time, there ought at least to have been a fresh affidavit or a Judge's order. By a rule of this Court (c), after a nonpros, non

(a) 6T. R. 52.

(b) 1 Chit. Rep. 275, n.

(c) Reg. Gen. H. T. 2 W. 4, s. 7, ante, Vol. 1, p. 184.