1840. BRUCE V. WAIT. "served with process;" Bulmer v. Marshall. (a) Before the late statute, 1 & 2 Vict. c. 110., a defendant might be arrested for a debt for which he had been already sued by foreign attachment, and had put in bail, Bromley v. Peck (b), or had actually surrendered in discharge of that attachment; Wood v. Thomp-. son (c); the ground of those decisions being that a proceeding by foreign attachment is not equivalent to an arrest, even where the same consequences are produced; so, though a fiat in bankruptcy is a statutory execution, yet, not being an execution on a judgment, it is not an execution within 8 Ann. c. 14. s. 1.; Lee v. Lopes. (d) And see Brandling v. Barrington (e); TillAdam v. Inhabitants of Bristol. (g) But, secondly, supposing proceedings by foreign attachment to be within the statute of James, it is here alleged by the plaintiff in error as part of the assignment of error in fact, and confessed by the plea in nullo est erratum, that the similiter was added by the plaintiff without the authority of the claimant. By the statute the certiorari must be delivered before demurrer or issue joined (h); for it would be unreasonable and vexatious to remove a cause from the inferior court after both parties had agreed to abide by the decision of that court upon the matter of law or question of fact raised by the plead (a) 5 B. & Ald. 821.; 1 Dowl. (b) 5 Taunt. 852. n. (h) Which enacts that no be received or allowed by the steward, judge, or officer of the court, wherein or to whom such writ shall be directed and delivered, &c., except the writ be delivered to the steward, &c., before issue or demurrer joined in the said cause, so as the said issue or demurrer be not joined within six weeks next after the arrest or appearance of the defendant or defendants in such action or suit. ings. But the reason does not apply where the act But, thirdly, the statute of James applies only to those cases in which the inferior court has jurisdiction. In Clapham's Case (b) this court awarded a habeas corpus to a court at Guildford to remove an action of debt. The Judge of the inferior court proceeded, notwithstanding the habeas, on the ground that issue had been joined more than six weeks after action brought. But inasmuch as it appeared that the action was brought upon an obligation not made within the vill, it was held that the proceedings subsequent to the delivery of the habeas (b) Cro. Car. 79. (a) 3 Mees. & Welsb. 21. 1840. BRUCE v. WAIT. 1840. BRUCE v. WAIT. were void, and a supersedeas was granted in this court. Here, the proceedings subsequent to the delivery of the certiorari were void on the same ground, and also because the suit in the Tolzey Court was commenced by process of attachment without any previous default on the part of the defendant below. With respect to its not being shewn that the cause of action arose with the jurisdiction, it has been held that in an inferior court it must appear that the cause of a promise or the cause of the debt arose within the jurisdiction, and it is not sufficient that the promise was made there. (a) Upon the other point, the absence of a summons preceding the attachment, Fisher v. Lane (b), recognised in M'Daniel v. Hughes (c), is decisive. There, in assumpsit by an administratrix, the defendant pleaded non assumpsit, and gave in evidence the minutes of a proceeding by foreign attachment entered as follows:-"Henry J'Anson demands against B. Fisher 100l. which she unjustly detains for that John Fisher, the intestate, was, in his lifetime, indebted to the said Henry J'Anson in debt 100l., damages 92l. 18s. Pledges, &c., that the officer afterwards, on the said 17th day of May, 10 G. 3., between the hours of three and four o'clock in the afternoon, attached the 927. 18s., the money of John Fisher, the intestate, in the hands of Lane and others. The Court held, that inasmuch as Mrs. Fisher had not been summoned the judgment was erroneous, and that it furnished no defence to the party who had paid under it. That was a much stronger case than the present; for there the objection prevailed against the garnishee, who was not privy to the transactions between Fisher, (a) See Moravia v. Sloper, Willes, 30.; Trevor v. Wall, 1 T. R. 151.; Horton v. Beckman, 6 T. R. 760. 764., and the cases collected, 1 Wms. Saund. 74 b. (b) 3 Wils. 297.; and 2 W. Bla. 834. (c) 3 East, 372.; and 1 Wms. Saund. 67 a. 1840. BRUCE บ. the plaintiff's intestate, and J'Anson, who sued the administratrix in the mayor's court. This latter objection entitles the plaintiff in error to ask for a reversal of the judgment on two grounds. In Clapham's Case (a) WAIT. it was held, that if there was defect of jurisdiction in the inferior court, the proceedings were removable by certiorari, notwithstanding issue might have been joined more than six weeks after the arrest or appearance of the defendant, because the action was upon an obligation not made within the vill, and the statute "provides against the removing such actions only when the cause of such property arises within the vill." The fact that the attachment issued without a previous summons is as fatal an objection in this case as that of the obligation being made out of the vill in Clapham's Case. The judgment therefore is reversible for the error in fact, and that the recorder proceeded after the delivery of a certiorari in a case not within the statute of James, by reason of the defect of jurisdiction created by the irregularity of issuing the attachment without a previous summons. But, independently of the errors in fact assigned, and supposing no certiorari to have issued, the absence of a summons to ground the attachment is a defect which the plaintiff in error might have assigned as error in law; Horton v. Beckmann (b); but of which Castledine v. Munday (c) shews that the plaintiff in error is entitled to avail himself, though not assigned. [Tindal C. J. You cannot make your error in fact a stepping-stone for the error in law.] It is submitted that the absence of a summons is a defect in the proceedings which will support the error in fact assigned, the defendant in error and the recorder having pro (a) Suprà, 21. (b). (b) Ubi suprà ; and see Ward v. Ellayn, Cro. Jac. 261.; Buchanan v. Rucker, 9 East, 192.; Ld. Cavan v. Stewart, 1 Stark. N. P. C. 525. (c) Suprà, 17. 1840. BRUCE v. WAIT ceeded after the delivery of a certiorari, which ought to have been allowed by reason of that defect, and which will also of itself constitute error in law. Fourthly, the statute of James applies only where demurrer or issue has been joined more than six weeks after the arrest or appearance of the party who is defendant in the inferior court (a), whereas here Coombe, the original defendant, never was arrested and never did appear. That objection was met in the Court of Exchequer, by holding that the claim of property put in by Bruce was, for the purposes of this statute, tantamount to an appearance by the defendant; but such a decision appears to be at variance with the judgment of Lord Tenterden in Bulmer v. Marshall. (b) Another answer given by the Court of Exchequer to this objection was, that the certiorari had issued irregularly in having been obtained ex parte as a matter of course, whereas it ought not to have issued without the leave of the Court, obtained upon pointing out some flaw in the proceedings or defect in the record. Upon that ground the Court of Exchequer discharged the rule against the Recorder of Bristol for an attachment for his contempt in proceeding after the delivery of the certiorari, with costs, although the attention of that court was called to the absence of jurisdiction in the recorder from the circumstance of there having been no summons to support the attachment, and although, supposing the certiorari to have issued irregularly, it was binding upon the inferior court until it should be quashed or superseded, or a procedendo should be granted; Zink v. Langton (c), William v. Thomas (d), Jones v. Davies (e), Keate v. Goldstein. (g) Whilst the (a) Antè, 20. (h). (b) 5 Barn. & Ald. 821.; 1 Dowl. & Ryl. 537. (c) 2 Dougl. 749 (d) Ibid. 751. n. |