1837.

SMITH

ย. MILLER.

Wightman, contrà, referred to the note in Jervis's Rules, Exch. of Pleas, 82, where it is said that in a country cause, where issue is joined in an issuable term, and no notice of trial given, the defendant cannot move for judgment as in case of a nonsuit until the term after the second assizes. Here issue was joined in a non-issuable term, which distinguishes the case; and Robinson v. Taylor (a) is a direct authority in support of the application. Gough v. White was a

town cause.

Lord ABINGER, C. B.--I have always understood that the former practice-and the new rules do not alter itwas, that where there had been no notice of trial, the plaintiff had two terms to go to trial in a town cause, and two assizes in a country cause. I think it makes no difference when issue was joined, whether in an issuable term or

not.

PARKE, B.-According to the former practice, this motion would have been too soon: and the Court decided in Gough v. White, that the new rules, which render it no longer necessary to enter the issue, make no difference in the time of moving for judgment as in case of a nonsuit.

ALDERSON, B.—It is very desirable to have one general rule, where the plaintiff does not take the case out of it by giving notice of trial; otherwise there would be one rule for cases before the sheriff, and a different one for country causes at the assizes. It has been decided as to cases before the sheriff, that where there has been no notice of trial, the defendant cannot move for judgment as in case of a nonsuit until two terms have elapsed (b).

(a) 5 Dowl. P. C. 518. (b) Butterworth v. Crabtree, 1 C. M. & R. 519; 3 Dowl. P. C.

Rule discharged, with costs.

189; Wright v. Skinner, 1 C. M.

& R. 746; Harle v. Wilson, 3
Dowl. P. C. 658.

Exch. of Pleas, 1837.

If the Judge of an inferior court of record receives a cer

tiorari after the

time limited by

the 21 Jac. 1,

LAVERACK v. BEAN.

MARTIN had obtained a rule nisi for a procedendo, directed to the judge of the Borough Court of Record at Hull, on an affidavit which stated that a certiorari had been delivered in this cause after issue joined, but before the jury was sworn; and that issue was not joined within six weeks next after the defendant's appearance. It appeared also from the affidavits, that the writ of certiorari was returnable on the 2nd of November, on which day the Court above. this rule was moved for, and that the record had in the mean time been filed.

c. 23, s. 2, a
procedendo
will issue. And
that, although
in the mean-
time the record

has been filed in

Crowder shewed cause.-The statute 21 Jac. 1, c. 23, s. 2, no doubt prohibits the judge or officer of the inferior Court from receiving the certiorari in such a case as the present; if however he does receive it, although after the time limited by the act, the case is then taken out of the operation of that statute, and falls within the 43 Eliz. c. 5, s. 2; the writ having been delivered before any of the jury were sworn. In Cox v. Hart (a), a procedendo was refused after interlocutory judgment, and before final judgment, though the plaintiff had given notice of executing a writ of inquiry. That case was confirmed in Godley v. Marsden (b). But secondly, the record, having been filed, cannot now be remanded to the Court below: Tidd's Pr. 411, (9th edit.). The motion should have been to take it off the file.

PARKE, B.-The record, under the circumstances of the case, was irregularly on the file, and may therefore go down again to the inferior Court. As to the other point, this is clearly a case falling precisely within the words of

(a) 2 Burr. 758.

(b) 6 Bingh. 433.

1837.

the 21 Jac. 1; and the officer, having been a wrong-doer Exch. of Pleas, in receiving the writ, is now to be corrected by this Court. He would otherwise have it in his power to neutralize the statute altogether.

ALDERSON, B., and GURNEY, B., concurred.

LAVERACK

v.

BEAN.

Rule absolute.

ARCHER v. GARRARD.

ed, which amount only to

one entire an

PETERSDORFF had obtained a rule for setting aside Where several the judgment signed in this cause for irregularity. The pleas are pleaddeclaration, which was in debt, was delivered on the 1st November; on the 6th, the defendant, without having obtained any rule to plead several matters, delivered the following pleas as to all the sum demanded except 40%., nunquam indebitatus; as to 40%., a tender and payment into court. On the 8th the plaintiff signed judgment.

Erle shewed cause. The question is, whether, under the rule of H. T., 2 W. 4, s. 34, the defendant was not bound to obtain a rule to plead several matters. The rule has been so construed in practice.

PARKE, B.-If all the pleas together amount only to one entire answer to the matters in the declaration, they amount but to one plea. If the rule has been construed otherwise in practice, it has been construed very wrongly.

ALDERSON, B.-The rule clearly refers to several pleas going to the whole action.

Rule absolute.

swer to the declaration, (as the general issue to part,

payment to

other part, &c.), no rule to plead several matters is necessary.

Exch. of Pleas, 1837.

Bail came up to

bers on the 20th

October, on
which day the
rule to bring
in the body ex-
pired, but were
rejected on ac-

count of a defect in the no

REGINA V. The Sheriff of MIDDLESEX, in a Cause of
DIGNAM v. REITTER.

HUMFREY had obtained a rule to shew cause why an justify at cham attachment issued against the sheriff of Middlesex should not be set aside for irregularity. The defendant was arrested on the 6th October; on the 7th the sheriff was ruled to return the writ: on the 12th, special bail was put in: on the 16th, the plaintiff's attorney gave notice of exception, and served the rule to bring in the body. In tion. The Judge the morning of the 20th, the bail came up to justify at chambers, but were rejected, on the ground of an irregularity in the notice of justification; and the learned Judge then made an order, giving three days' further time to justify bail, "without prejudice to the sheriff's being in contempt." The bail justified on the 23rd.

tice of justifica

made an order

for three days'

further time to justify, "without prejudice to

the sheriff's being in contempt;" and the bail justified within that period:-Held, that an attachment issued against the

gular.

Petersdorff shewed cause.-The attachment was regular. The rule of H. T. 3 W. 4, requires, that where a sheriff was irre- rule to return a bailable writ expires in vacation, the sheriff shall bring the defendant into court, by putting in and perfecting bail above, within the same number of days as by the practice of the court is prescribed with respect to rules to bring in the body issued in term. Here the sheand as soon as

riff was bound to justify bail on the 20th;
the learned Judge decided that the bail could not justify
on that day, the sheriff was in contempt. [Parke, B.—It
seems, therefore, that the Judge's order ought to be
thrown out of the case. The sheriff was in contempt if
he did not justify bail on the 20th: he could not, because
there was no proper notice; therefore he was inevitably in
contempt.]

Humfrey, contrà.-The sheriff was not in contempt at the time of the order, because he had the whole of that

1837.

REGINA

day to bring in the body. The meaning of the order is, Exch. of Pleas, without prejudice to his being in contempt at that time; otherwise the time given is a great injury instead of a benefit to the defendant, since it subjects him to the costs of an attachment.

PARKE, B.-The Court are of opinion, that the true meaning of the order is, that the time should be given without prejudice to the sheriff's being in contempt at the time of the order. That clause of the order was not necessary in this view of the case, but it may have been introduced pro majori cautelâ. It is to be read, therefore, as if it contained the word "now." I thought differently at first, but the rest of the court are of that opinion, and I will not say that I dissent.

ALDERSON, B.-The probable meaning of the clause was this: that, the argument having been addressed to the learned judge, that the sheriff was in contempt by reason of the rejection of the bail, he made the order without prejudice to that question. That question has now been argued, and the Court think the sheriff was not then in contempt.

BOLLAND, B., and GURNEY, B., concurred.

Rule absolute.

v.

Sheriff of MIDDLESEX.

MORRALL and Another v. PARKER.

Affidavit to money lent by

hold to bail, for

his late cothe plaintiff and partners, C. &

D.:"-Held

A RULE had been obtained for setting aside the bailbond given in this cause, on the ground of a defect in the affidavit to hold to bail, which stated the defendant to be indebted to the plaintiffs in for money by the for money by the plaintiffs" and their late co-partners C. and D." lent and insufficient, advanced to the defendant at his request. An affidavit in did support of the rule stated that one of the parties described that they were as the plaintiffs' late co-partners was still living.

VOL. III.

F

M. W.

inasmuch as it

dead.