1836. BOYES v. HEWETSON. TINDAL, C. J.-I am of opinion that this rule must be discharged. The question is whether or not a nonsuit ought to be entered on the ground that the venue is laid in the wrong county; the action being brought on a covenant relating to land situate in Surrey, and the venue being laid in London. Having looked at the statute 16 & 17 Car. 2, c. 8, and considered the authorities to which our attention has been more particularly drawn, I am of opinion that the objection does not go to a nonsuit. The statute had for its object the prevention of arrests of judgment: and the 1st section enacts "that, if there be a verdict, judgment shall not be stayed or reversed for that there is no right venue, so as the cause was tried by a jury of the proper county or place where the action is laid." It appears therefore to be clear, that, after the passing of this statute, if in a local action the venue was laid in a wrong county and the cause there duly tried, the judgment could not be arrested on that ground. But, it is urged on the part of the defendant that the objection to the jurisdiction here was taken before the trial proceeded. We must try the question by the ordinary forms of proceeding before a jury. It is well known that a plaintiff cannot be compelled to submit to a nonsuit: he may at all times, if he thinks proper, go to the jury. On the present occasion he would have a very good reason for insisting upon the case going to the jury, inasmuch as he would then be relieved from this objection. There is nothing upon the face of the record to raise any question as to the locality of the premises; and nothing to entitle the defendant to a verdict. PARK, J.-I am of the same opinion. A plaintiff is never bound to submit to be nonsuited. There is nothing on the face of this record to shew that the locality of the premises is at variance with the venue. The new rule applicable to the subject is the 8th of the general rules of Hilary Term, 4 Will. 4: "The name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff; and no venue shall be stated in the body of the declaration, or in any subsequent pleading: provided that, in cases where local description is now required, such local description shall be given." If the defendant had intended to object to the absence of the local description of the premises in the declaration, he should have craved oyer of the indenture, and demurred on the ground of a variance. The objection, on the present state of the record, is cured by the 16 & 17 Car. 2, c. 8, after verdict. The judgment delivered by Willes, C. J., in The Bailiffs of Litchfield v. Slater, appears to me to be conclusive: the court there, against their own opinions, reluctantly yielded to the force of the authorities. GASELEE, J., was absent. BOSANQUET, J.-The defendant had no right to insist upon a nonsuit, and he was not entitled to a verdict. The question might have been raised by setting out the indenture on oyer and demurring; or the variance might perhaps have been put upon the record by plea, as was done in The Bailiffs of Litchfield v. Slater, where it was determined, and is now considered settled, that an objection of this nature cannot be made the subject of a motion in arrest of judgment, being cured by the statute 16 & 17 Car. 2, c. 8. The plaintiff here had a right to appear, and did appear, and therefore there could not be a nonsuit. And there was no issue upon which this matter could be given in evidence; no issue upon which the jury could have given any verdict so as to raise the question. Rule discharged, without costs. A rule nisi was afterwards obtained for an attachment against the defendant for nonpayment of the money awarded 1836. BOYES v. HEWETSON. Monday, To found a attachment for non-payment of money pursuant to an award, where the demand is made under a power of attorney, it must appear that the power of attorney was produced to the party at the time the demand was made. 1836. BOYES v. HEWETSON. by the arbitrator. The demand was made under a power of attorney; but neither the power of attorney, nor the award, or the rule of court thereon, were produced at the time of the service of the copy of the award. Platt shewed cause.-He submitted that the defendant could not be said to be guilty of a contempt unless it appeared that he had been made aware of the existence of all the documents necessary to entitle the party to make the demand and he relied on Jackson v. Clarke, 13 Price, 208, M'Clel. 72, where it was held, in the court of Exchequer, that affidavits whereon to ground a rule nisi for an attachment against a defendant for nonpayment of money and costs pursuant to an award, and the master's allocatur, where the demand has been made by a third person under a power of attorney, should state that the original power was shewn to the defendant at the time when the demand was made. PER CURIAM.-The universal practice has always been understood to require the original to be shewn, on the service of a copy. Where it is sought to bring a party into contempt, the practice in this respect ought to be very strictly adhered to. (a) See Reid v. Deer, 7 D. & R. 612; Dicas v. Warne, ante, Vol. 1, p. 537; Wadsworth v. Mar Rule discharged (a). shall, 3 Tyr. 328, 1 C. & M. 87; Rex v. Soloman, 1 Dowl. 618. TAYLOR v. SLATER. THE affidavit of debt in this case was made on the 21st February, 1834; the process thereon was not sued out until the 18th January, 1836; and the defendant was arrested on the same day. On the 29th instant Wilde, Serjeant, obtained a rule nisi for his discharge from custody, on the ground that the affidavit was functus. Andrews, Serjeant, shewed cause.-In Tidd's Practice, 9th edit. p. 190, it is said: "An affidavit to hold to bail continues in force for a year; during which period the defendant may be arrested on the first or any subsequent process sued out thereon. But an affidavit made more than a year before the suing out of the writ is not sufficient to authorize an arrest in the King's Bench; for, the act requires an oath of a subsisting debt at the time of suing out the process; and, after a year, it will be presumed that the debt has been paid, if nothing appear to the contrary-Collier v. Hague, 2 Str. 1270; Pitches v. Davy, MS. Hilary, 44 Geo. 3; Stewart v. Freeman, MS. 47 Geo. 3, K. B.: but see Crooks v. Holditch, 1 B. & P. 176. It is therefore necessary that a new affidavit should be made before a writ is sued out, when more than a year has elapsed since the making of the former affidavit." The cases there cited are all King's Bench decisions: the rule suggested has never obtained in this court. [Tindal, C. J.-The reason of the thing is applicable to the practice of all the courts.] The defendant should at least make an affidavit that the debt has been paid. [Tindal, C. J.-He has a right to rely upon the presumption of law.] Then, the application is too late. The arrest took place on the 18th January; consequently the time for putting in bail expired on the 27th; and the motion was not made 1836. Monday, Semble that a defendant can not be held to bail upon an affidavit made • more than a year before the issuing of the writ. Semble that the 33rd rule of the time for moving on the ground of irregularity, does not apply with equal force to prisoner as to that of a defen dant at large. 1836. TAYLOR บ. SLATER. until the 29th. In Tucker v. Colegate, 2 C. & J. 489, 2 Tyr. 496, 1 Dowl. 574, it was expressly held that objections to the affidavit to hold to bail cannot be taken after the time for putting in bail above has elapsed. Wilde, Serjeant, in support of his rule, submitted that the rule as to the time for moving to set aside process or proceedings on the ground of irregularity, did not apply to the case of a prisoner; and that, at all events, the objection could not arise on the present occasion, there being in point of law no affidavit at all upon the files of the court. PER CURIAM.-The rule certainly does not apply with the ordinary strictness in the case of a prisoner (a). Rule absolute. (a) But see Fownes v. Stokes, ante, p. 205. Monday, was delivered on the 12th January, with in four days; on the 13th the SIMPSON v. Cooper. The declaration ANDREWS, Serjeant, on a former day, obtained a rule nisi to set aside the judgment signed in this case for want notice to plead of a plea, for irregularity. The irregularity complained of was that the judgment was signed before the time for defendant ob- pleading had expired. The declaration was delivered on tained a judge's the 12th January; on the 13th, a judge's order was obtained for "seven days' time to plead," the defendant undertaking to receive short notice of trial for the last Sitting in the present term. The question was, whether the seven days were to be reckoned in addition to the four days which the defendant originally had by the practice of the court. order for "seven days' time to plead," upon an undertaking to accept short notice of trial for the last Sitting in the term, the 26th -Held, that the seven days commenced from the date of the order, and not from the expiration of the four days. |