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against a sheriff for removing goods taken in execution without paying a year's rent. It has been decided, that under that statute it is the duty of the sheriff to levy for the rent in the first instance, and then for the execution, and to retain a sufficient sum to satisfy such rent before he removes the goods, Colyer v. Spear, 4 B. Moore, 473. But yet the remedy is not debt for the money, but case, for not complying with the provisions of the statute. So actions against the hundred, whether upon the statute of Winton, 13 Ed. 1, st. 2, c. 1, 2., or upon the Black Act, 9 G. 1, c. 22., are in case, and the declaration in such cases alleges that the hundred have not made amends.

Walsh, contra. The plaintiffs are clearly entitled to judgment upon the first count, because that is founded upon a duty imposed by statute upon the defendants to pay this money to the plaintiffs. The facts stated are sufficient to show that there was a legal obligation on the defendants to pay. It is true that there is also an allegation that the defendants agreed to pay the money, but that allegation was unnecessary, and may be rejected as surplusage. As to the other counts, assuming that a corporation cannot contract except by deed, the neglect to set forth a deed is mere matter of form. It must

*967] be presumed upon general demurrer that the contract was by deed.

BAYLEY, J. It is not necessary to decide in this case whether a corporation may or may not be liable on a simple contract. That question is not raised by this demurrer as far as it applies to the first count of the declaration. That count states that the plaintiff's were employed to obtain the act of Parliament; that they did obtain it; that their costs amounted to a certain sum, of which the defendants had notice; and that by the act it was enacted that the costs attending the obtaining the act should be paid out of the first money subscribed by virtue of the act, in preference to all other payments whatsoever. It then states that money was subscribed by virtue of the act; that it came into the hands of the company, and that it became their duty to pay the costs to the plaintiffs, and that they did not pay. Now where an act of Parliament, casts upon a party an obligation to pay a specific sum of money to particular persons, the law then enables those persons to maintain an action of debt. It is said that the action should have been case, and not debt; and that on the 8 Anne, c. 14, case is the proper form of action against the sheriff for removing goods without levying a year's rent. That statute directs that the party at whose suit the execution is sued out shall, before the removal of the goods from the premises, pay the rent to the landlord; and the sheriff is empowered to levy and pay to the plaintiff the meney so due for the rent, as well as the execution money. The object of the enactment was that no goods should be removed off the premises until the rent was secured to the landlord. The duty cast upon the sheriff by that act of Parliament is not to pay *968] the rent to the landlord, but to levy the rent before the removal of the goods; and if he remove the goods without levying the rent, he is guilty of a breach of duty, and answerable for any damage ensuing from that breach of duty. If the statute had enacted that the rent should be paid to the landlord by the sheriff, then he might perhaps be answerable in an action of debt. Here the act of Parliament does direct that the company should pay the costs of obtaining the act out of the first money subscribed, and those costs are due to the plaintiffs; and therefore, I think the first count is maintainable. I am also disposed to think that the common counts may be supported. I am not convinced by the case of Atty v. Parish, that where a contract appears upon the face of a declaration to be such that the plaintiff may recover whether the contract be by deed or not, that it is necessary to declare upon the deed if there be one. The strong impression upon my mind is that upon principle, although there be a deed between the parties, yet if there be a debt independent of the deed, the amount of which, however, is to be ascertained by the deed, the existence of the deed will not prevent the party from recovering that debt upon the common counts. It is unnecessary, however, to determine that

point, because I think that if a deed were necessary, we are justified upon general demurrer in presuming that there was such a deed, and that the neg lect to set out the deed is mere matter of form. I am, therefore, clearly of opinion, that the plaintiffs are entitled to recover upon the first count; and I also think, that they are entitled to recover upon the common counts, because if the plaintiffs could not recover upon a contract, not by deed, we are bound to conclude upon general demurrer, that there was such a deed. The [*969 consequence is, that there must be judgment for the plaintiffs.

HOLROYD, J. I think that all the counts may be supported. The first count states all the facts necessary to constitute a debt. It does indeed contain an allegation that the defendants agreed to pay the money, but, independently of that allegation, the other facts stated in that count are sufficient to show that the defendants were under a legal obligation to pay the money to the plaintiffs. That allegation, therefore, may be rejected as surplusage. In actions against the sheriff under the stat. 8 Anne, c. 14, for removing goods withou: levying a year's rent, the sheriff after notice from the landlord that a year's rent is due, becomes a tort feasor by removing the goods, and liable in damages to the landlord for the consequence of that wrongful act. But here the act of Parliament, directed that the costs of obtaining the bill should be paid out of the first monies subscribed under the act. When the money so subscribed came to the possession of the company, they became by law liable to pay those costs; and the amount of them was money which the defendants owed to, and unjustly detained from the plaintiffs. So under the stat. 28 Eliz. c. 4, which says that the sheriff shall take for his fees no more than 12 pence for every 207. under 100l., and 6d. for every 20l. above 100, the sheriff may maintain debt for his fees, Com. Dig., Ďebt, (A. 1.) As to the common counts, I am also of opinion, that if a corporation cannot contract but by deed, we may upon general demurrer, infer that there was a deed. Judgment for the plaintiff.

*ST. HANLAIRE v. BYAM.

[*970

Process being returnable on the 7th of November, the time to put in bail expired on the 11th. On the 10th, defendant obtained a rule nisi to set aside process and stay proceed. ings, on the ground of misnomer.

This rule was discharged with costs on the 21st. On the 22d, an assignment of the bailbond was taken, and proceedings had under it, and on the same day the defendant put in bail: Held, that the defendant had not the whole of the 22d to put in bail, and that the assignment of the bail-bond, and the proceedings had under it, were regular.

THE process in this case being returnable on the 7th of November, the time to put in bail expired on the 11th. On the 10th, the defendant obtained a rule to set aside the process, and to stay proceedings on the ground of the misnomer of the defendant. This rule was discharged with costs on the 21st. On the 22d, an assignment of the bail-bond was taken, and proceedings had thereon. On the same 22d of November, the defendant put in bail, and gave notice thereof to the plaintiff. A rule nisi was obtained to set aside the assignment of the bail-bond, and the proceedings thereon, on the ground that the defendant had the whole of the 22d, to put in bail.

D. F. Jones, now showed cause. This motion is founded upon a supposition that the rule nisi for setting aside the process in the original action having been obtained one day before the time, when the defendant was bound to

put in bail, and that rule having directed proceedings to be stayed in the mean time, the defendant had as much time to put in his bail after the rule was discharged, as he had when it was obtained. But this proceeds upon a misapplication of a rule which prevails under different circumstances, and for a different purpose. In the case of a bill of particulars, the application for the bill of particulars is proper, both parties are heard before the judge at the time when the order is made; the plaintiff may prevent all delay by immediately *971] delivering his particular, and the very reason why it is granted, shows it to be necessary that the defendant after he receives it should have some time allowed him to plead. But in this case the court having discharged the rule with costs, it is clear that the motion should never have been made, and the defendant ought not to be allowed to profit by his own wrong. The rule nisi which stayed the proceedings, meant only to stay the adverse proceedings of the plaintiff, and not to dispense with the defendant's own proceeding, to put in bail so as to secure himself. At all events the defendant should have put in his bail immediately upon the rule being discharged, whereas the rule was discharged on the 21st, and the assignment of the bailbond was taken on the 22d, on the evening of which day notice of bail was given.

Comyn, in support of the rule. The rule nisi stayed proceedings until that rule was disposed of, and it is the invariable rule that a party staying proceedings has as much time after the rule is discharged, as he had when it was obtained. If the rule nisi was improperly obtained, the defendant was sufficiently punished by its being discharged with costs. The defendant could not tell until the rule was discharged, whether he was bound to put in bail or not. It was only reasonable that he should have until the 22d, to put in his bail. The bill of particulars is an instance which proves the general rule that the party ought to have the same time after as before.

BAYLEY, J. It seems to me that the defendant, whose rule nisi was discharged with costs, ought not to be, with respect to time, in a better condition

by reason of his own rule, improperly obtained. In many instances *972] the payment of the costs of the rule may not be a sufficient compensation to the plaintiff for the loss of time. The staying of proceedings applies only to the adverse proceedings of the plainiiff, and not to the proceedings of the defendant for his own security. I think that the defendant, if he did not put in bail pending the rule, ought at all events to have put it in immediately upon the rule being discharged. But as there is an affidavit of a real defence upon the merits, it seems reasonable that the proceedings upon the assignment of the bail-bond, should be stayed upon payment of all the costs of those proceedings and of the motion.

HOLROYD, J., Concurred.

Rule absolute on those terms.

VOL. X.-111

4 E 2

END OF MICHAELMAS TERM.

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ACTION ON THE CASE.

1. A plaintiff is bound to accept from a de-
fendant in custody under a ca. sa. the
debt and costs when tendered in satisfac-
tion of his debt, and to sign an authority
to the sheriff to discharge the defendant
out of custody. And an action on the
case will lie against the plaintiff for hav-|
ing maliciously refused so to do; and the
refusal to sign the discharge is sufficient
prima facie evidence of malice in the
absence of circumstances to rebut the
presumption. Crozer v. Pilling and
Moore, E. 6 G. 4.
Page 26
2. Case against three defendants, proprie-
tors of a stage coach. The declaration
stated that the defendants so carelessly
managed their coach and horses, that the
coach ran against the plaintiff and broke
his leg. It appeared in evidence that one
of the defendants was driving at the
time when the accident happened, and
the jury found that it happened through
his negligent driving: Held, that the
plaintiff might maintain case against all
the proprietors, although he might, per-
haps, have been entitled to bring trespass
against the one that drove the coach.
Moreton v. Hardern and two others, E.
6 G. 4.
223

damages on the count in trover.
rill v. Hobby, T. 6 G. 4.

AGREEMENT.

See CoVANANT, 3.

Cotte-
465

An attorney, town clerk, and clerk of the
peace for the borough of L. in the county
of L., upon the dissolution of a partner-
ship which had existed between him and
two other persons, entered into an agree
ment to pay to one of them (C. D.) a
certain sum of money, and to use his
endeavors to procure for him one-fourth
of the prosecutions arising in the town
clerk's office. In an action by C. D. on
this agreement, it appeared that the ma-
gistrates of the borough of L. commit
some offenders to be tried at the borough
sessions, others at the county sessions,
and others at the county assizes: Held,
that the agreement extended to all prose-
cutions arising in the town clerk's of
fice," wherever they might be tried, and
that letters written before the agreement
was signed, could not be given in evi-
dence to show that the parties intended
the agreement to be applicable to the
prosecutions at the borough sessions
only: Held, also, that the defendant, as
clerk of the peace of the borough, could
not legally enter into such an agreement
as that set out in the declaration.

Quære, Whether it would have been
legal had he been town clerk only, and
not clerk of the peace. Hughes, gent.,
one, &c. v. Stathan, gent., one, &c., E.
6 G. 4.

3. Case for an injury done to plaintiff's re-
versionary interest in land, by cutting
and carrying away branches of trees
growing there. Second count in trover
for the wood carried away. It appeared
in evidence that the land was let by the
plaintiff to the occupier under a written
agreement: Held, that in order to support
the first count the plaintiff was bound to Debt on bond.
produce it.

The plaintiff proved that the defend-
ant carried away some branches of the
trees, but gave no evidence of the value:
Held, that he was entitled to nominal

ANNUITY.

See PAYMENT, 2.

187

Plea, that before the making
of the bond plaintiff carried on the wine
and spirit trade, and was induced by her
two sons to sell it; that she did sell it,
advanced the proceeds and what other
money she had, amounting to 1000, to

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