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after their bankruptcy, to pay debts due before, cannot be supported. That case was decided upon the ground, that the new promise being founded only upon a conscientious obligation, did not make the party liable to arrest; the same objection might be applied to promises made by persons when of age, to pay debts contracted during infancy. Unless, therefore, it be held that such persons are not liable to be arrested, this defendant cannot be entitled to his discharge.

Campbell, contrà. The words of the statute 5 G. 2. c. 30. s. 7. put this matter out of all doubt. "And in case any such bankrupt shall afterwards be arrested, prosecuted, or impleaded, for any debt due before such time as he, she or they became bankrupt, such bankrupt shall be discharged upon common bail." He was then stopped by the Court.

ABBOTT C. J. I have no doubt that the case of Wilson v. Kemp was rightly decided, and the words of the statute which has been cited are extremely strong. It must be a question for the jury, whether or no the bankrupt has made himself liable by a new promise, and until they have decided that question against him, he is entitled to be discharged.

Rule absolute. (a)

(a) See Blackburn v. Ogle, 8 Price, 526. contrà; but the statute 5 G. 2. c. 50. does not seem to have been referred to.

1822.

PEERS

against GADDERER.

1822.

Thursday,
November 28th.

Where a plain

has been non

suited, the de

judgment may be regularly signed on the

first day of the

DOE on the Demise of DAVIES and Wife, against

ROE.

tiff in ejectment TAUNTON had obtained a rule nisi for setting aside the writ of habere facias possessionem, issued in this fendant not hav- case, with costs for irregularity and for restoring the ing appeared to confess lease,en- possession. The affidavits in support of the rule stated, try, and ouster, that at the last Summer assizes for the county of Hereford, the plaintiff in this case was nonsuited, the defendant not having appeared to confess lease, entry, and ouster. On the 6th November judgment against the casual ejector was signed, and on the same day a writ of possession issued, but the plaintiffs' agents did not obtain the postea from the associate until November 12th. The affidavit in answer stated, that the practice of the associates for the different circuits

ensuing term, and a writ of possession issued on the same day, although the

postea be not delivered over at the time by the associate to the attorney for the plaintiff.

is not to deliver out any posteas to the successful party till the 5th day of the term following the assizes, without any distinction; that the posteas, when obtained, are not deposited in the treasury, or other office of K. B., except where it is necessary to enter up a final judgment on the roll under them, in which case they are left with the clerk of the treasury for that purpose, and are afterwards withdrawn and kept by the attorney of the successful party. The affidavits also stated, that the writ of possession had been received by the sheriff before the 12th of November; and that, on that day, by an arrangement agreed on between the attornies

on

on both sides, possession had been actually delivered under it to the lessors of the plaintiff.

Campbell shewed cause, and contended that there was no irregularity in the case, and even if there were, it had been waived by the agreement between the parties. In support of the regularity of the proceeding, he cited Doe dem. Lord Palmerston v. Copeland. (a) Here, the 6th November, on which day the judgment was signed, was the day in bank, and it is not necessary to have the postea actually in court.

Taunton, contrà. Here it appears that that could not have been done, for it is sworn, and not denied, that it was with the associate at the time. In Doe v. Copeland, the Court held that the writ of possession cannot be taken out till the postea comes in on the day in bank; and in Lilly's Practical Reg. tit. Postea (b), the same rule is laid down. For the Court and its officers are thereby informed what the result of the trial has been. It ought, therefore, to be produced, or to be capable of being produced at the time when the judgment is signed. In Shanford v. Chamberlane (c), which was a case of ejectment, the Court held the judgment irregular, being signed on the day of the return of the postea, although not executed till after the 6th day; which is a stronger case than this. And in Sir Hugh Middleton's case (d) it is decided, that judgment against the casual ejector cannot be entered up till the postea is returned and indorsed, that the nonsuit was for want of

(a) 2 T. R. 779.

(c) 5 Mod. 205.

I 4

(6) Vol. ii. p. 423.
(d) 1 Keble, 246.

confessing

1822.

DOE dem.
DAVIES
against
ROE.

1822.

DoE dem.
DAVIES
against
Roz.

confessing lease, entry, and ouster.

The judgment is therefore irregular, and there is no waiver here, for the arrangement as to the giving possession, was only to prevent the writ of possession being executed in a hostile manner, and was not intended as a waiver of any irregularity. Besides, the attorney in the country on the 12th November, might well suppose that judgment had been regularly signed, as it might have been if the postea had been obtained sooner from the associate. to the practice of the associates, if wrong, it ought to be corrected, and can have no weight on the determination of this court.

As

ABBOTT C. J. It is quite clear that we ought not to grant the present application. The writ of possession has been executed at all events, only a day earlier than according to the strictest rule it ought to have been; and in Doe v. Copeland, where the Court held the writ of possession irregular, they did not set it aside, but only referred it to the Master, to ascertain the damage sustained by the tenant from the too early execution of the writ. This is all, therefore, which we could do in this case; and to do this would be absurd, as no damage can have been sustained. Perhaps, in strictness of law, this may have been irregular; but even if it be so, this rule must be discharged.

BAYLEY J. In the case of Shanford v. Chamberlane, there was a verdict for the plaintiff at the trial, and then a rule for judgment is necessary. Here it is not so, and the judgment may be signed on the day in bank. It seems to me, therefore, that the proceedings are perfectly regular.

HOLROYD

HOLROYD J. I am of the same opinion. The distinction is, between the cases where there is a rule for judgment required, and where that is not so. Where a

rule is requisite, judgment cannot be signed till it has expired. But here, no rule for judgment is necessary. It is said, that the postea should be actually in court. That is not according to our ordinary practice. Motions for new trials and in arrest of judgment are constantly made without the postea ever being produced to the court.

BEST J. Concurred.

1822.

Doɛ dem.
DAVIES

against

ROE.

Rule discharged with costs.

BRADNEY and Another against HASSELDEN, on Thursday, the Demise of HARPER and Others, (in Error.)

RYAN had obtained a rule nisi, calling upon the heirs of the plaintiffs in error, and upon the tenants in possession of the premises in this ejectment, to shew cause why, on payment of costs, the declaration should not be amended by enlarging the several terms of ten years and five years therein mentioned, to the term of seventy years. The application was made on the behalf

of the son and heir of the defendant in error, who had

November 28th.

[blocks in formation]

for many years,

during which

the term in the

declaration in ejectment ex

died in 1777. It appeared, that in 1763, the defend-pired, the Court ant in error had in an ejectment tried at the Stafford mit it to be en

would not per

it were quite

Summer assizes, obtained a verdict against the plaintiffs larged, unless in error for the recovery of the possession of certain clear that the

messuages, &c, subject to the opinion of the Court of

amendment

would work no injustice to the Common opposite party.

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