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CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

HILARY TERM,

IN THE FOURTH AND FIFTH YEARS OF THE REIGN

OF GEORGE IV.

MEMORANDA.

1824.

DURING the vacation, Sir Robert Dallas, Knight, retired from the office of Lord Chief Justice of the Common Pleas, and was succeeded by Sir Robert Gifford, Knight, the King's Attorney General, who was called to the degree of Serjeant at Law. The motto on his rings was “Secundis Laboribus.” On the first day of this Term, he took his seat on the bench, and was shortly afterwards raised to the dignity of a peer of Great Britain, by the title of Baron Gifford, of St. Leonard's, in the county of Devon.

In the course of last Michaelmas Term, Sir Richard Richards, Knight, Lord Chief Baron of the Court of Exchequer, died, at his house in Great Ormond Street.

William Alexander, Esq. one of the Masters in Chancery, being appointed Lord Chief Baron of the Exchequer,

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1824.

was called to the degree of Serjeant at Law, and gave
rings with the motto “ Secundis Laboribus.” On the first
day of this Term he took his seat on the bench.

Sir John Singleton Copley, Knight, the King's Solicitor
General, was appointed to the office of Attorney General.

Charles Wetherell, of the Honourable Society of the
Inner Temple, Esq., was appointed to the office of Solicitor
General.

William Wingfield, Esq. one of his Majesty's Counsel learned in the law, having resigned the office of Chief Justice of the Brecon Circuit, succeeded to the office of one of the Masters in Chancery, vacant by the death of Sir John Simeon, Knight.

James Farrer, of the Honourable Society of Lincoln's
Inn, Esq. was appointed to the office of one of the Masters
in Chancery, vacant by the promotion of William Alexander,
Esq.

Michael Nolan, Esq. one of his Majesty's Counsel
learned in the law, was appointed to the office of Chief
Justice of the Brecon Circuit, vacant by the resignation of
William Wingfield, Esq.

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1824.

KING v. WILLIAMS.

Friday,

January 23. This was an action of debt on simple contract. Plea, To debt on nil debet per legem, and issue thereon. A day having been simple con

tract, the defixed by the Master for the defendant to appear in court fendant pleadwith his compurgators, to wage his law, but without ed“ nil debet

per legem," mentioning what number he should bring for that purpose, and applied

to the Court

to assign the Langslow now applied to the Court to assign the proper necessary

number of number. The books leave it uncertain what number of

compurgators compurgators are necessary in this unusual mode of de- to wage his

law, but the fence. Some

say

that seven are necessary; and others, Court refused that six are sufficient; but the court, in the exercise of its

to interfere. discretion, will assign the least possible number, for the purpose of saving expense to the parties. In Les Termes de la Ley, 442, it is said, “ Mes quant un gagera son ley, il amesnera ovesque lui 6, 8, or 12 de ses vicines come le court lui assignera de jurer ovesque lui.” That book is attributed, by Lord Coke, to Rastall, and is spoken of by him, as one of high authority, in the preface to his 10th. Report. [Bayley, J. I believe Blackstone lays it down that eleven are necessary.] He certainly does (a), and cites Co. Litt. 295. and the Year Book, 33 H. 6. 8. for what is there laid down; but those authorities do not bear him out. In Fleta, b. 2. c. 63. the rule seems to be, that the number of the compurgators shall be double the number of the secta produced by the plaintiff; and in the Year Book, 35 H. 6. 8. it is said, that the defendant “ jurabit duodecimâ manu.” According to the former doctrine, the number must be fluctuating and uncertain, and the fair construction of the latter expression would be six, and not twelve. In 2 Ventris, 171. it is declared, that fewer than eleven are sufficient; and in Style's Practical Register, 572, it is said, that

(a) 3 Comm. 343.

1824. “ he that is to wage the law must do it duodenâ manu, viz. he

must bring six compurgators with him; the defendant then KING

swears de fidelitate, the compurgators, de credulitate.” It WILLIAMS. is true that this mode of defence is not very frequently re

sorted to, but still the Court will recognize it as lawful; for
in Barry v. Robinson (a), when the counsel, in arguing that
case, said, that the wager of law had long since fallen into
disuse, and that if a man were now to tender his wager of
law, the Court would refuse to allow it, and would put him
to plead to the action, the reporter says, “this was de-
nied by the Court.”

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ABBOTT, C. J.-We think this is a case in which the Court ought not to interfere in any way. The defendant must produce the number of compurgators which the law requires, but that he must find out, as he may be advised. We shall make no order upon the subject. He must bring the proper number.

Bayley, J.-We do not relieve you from bringing the full number which the law requires ; but what that number is, you must find out. We are not to say what the proper number is. If the plaintiff is not satisfied with the number brought, he may object, and then the matter may be further considered.

Langslow submitted that six would be sufficient.

ABBOTT, C. J.—To give any opinion, would be doing something ; we propose to do nothing ; we leave you to find `your own way.

Nothing was taken by the motion. The defendant prepared to bring eleven compurgators; but the action was afterwards abandoned.

(a) 1 N. R. 297.

1824.

HULKE v. PICKERING.

Monday,

January 26. ABRAHAM having obtained a rule nisi for entering The affidavit up judgment on a warrant of attorney more than twenty a rule nisi for years old,

entering up judgment on a

warrant of atF. Pollock now shewed for cause, that the affidavit on torney more

thau twenty which the rule nisi was obtained did not state any circum- years old, must stances from which the court could infer that the money tively that the

shew affirmaremained due. The general rule of law, that after an debi still re

mains unsatisinterval of twenty years, paymevt must be presumed, ex- fied. tends to warrants of attorney as well as to other securities, and therefore, in the absence of any facts to rebut the presumption of payment in the present case, the Court will discharge this rule.

Abraham contra, insisted that the onus lay on the other side to shew in answer to the application that the money had been paid. No precedent could be found in any of the books of practice, of an affidavit setting out circumstances to shew that a warrant of attorney remained unsatisfied. If it had been satistied, it was in the power of the opposite party to prove that fact.

ABBOTT, C. J.—The reason for granting a rule nisi to enter up judgment on a warrant of attorney more than twenty years old, is, that the party may have an opportunity of shewing cause for any irregularity in the proceedings, and that he may not be taken by surprise by an immediate execution after the lapse of so great a length of time. It is a rule of practice, founded in convenience, that if a party delays to

his judgment so long, it must be presumed that the debt is satisfied, unless the plaintiff lays before the court something to shew the contrary. In a case of this nature, I think there ought to be some reason assigned for the

enter up

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