ABBOTT, C. J.-If this question had been decided by any clear and distinct report of any judgment of the Court upon it, or if the decision in Ford v. Parr had been acted upon in subsequent practice, I should have abided by such authority and practice. In the absence of any such authority and practice, I think we are at liberty to look into the act of parliament itself, and put such a construction upon it as appears best calculated to effectuate the intention of the legislature. I cannot consider the case in Wilson's Reports as an authority on which we ought to rely, or as binding upon us, because, on looking into that Report, it is open at least to this supposition, that the attention of the Court had been directed, not to the 4th section of the 8 & 9 W.3. c. 11. upon which this question arises; but to the first section, which is applicable to a totally different matter, namely, in what cases defendants shall be entitled to a certificate. In the report of the case, the Court is made to say,

“ that the certificate must be granted in open Court at the trial,” which words are not to be found in the section upon which this question arises. It is certain that of late years the general opinion, both of the bar and the bench, has been, that a certificate under this statute might be granted at any time after the trial. It was so considered by the counsel in Gundry v. Sturt (a), and in Good v. Watkins (6), which came from the Oxford Circuit, and which was tried before Mr. Justice Le Blanc. That learned Judge thought that he might grant a certificate at any time after the trial; and said that, if bound by law, he would grant a certificate ; but if not, he had expressed his determination not to do so. But in that case it never was made an objection that it could not be granted at any time after the trial. It is manifest, therefore, from both these cases, and from some others which might be mentioned, that the general opinion has been, that the certificate might be granted at any time after the trial. Let us look at the act of parliament itself. The first section provides that if there are several defendants in

(a) 1 T. R. 636. (6) 3 East, 495.




the actions therein enumerated, and any one or more of them shall be acquitted by verdict, they shall have costs in like manner as if a verdict had been given against the plaintiff, and all the defendants had been acquitted, unless the Judge before whom such cause should be tried, shall, immediately after the trial thereof in open Court, certify upon the record under his hand, that there was a reasonable cause for the making such person or persons a defendant or defendants to such action or plaint. Upon that section there can be no doubt. The intention of the legislature is plainly expressed, that the defendant shall have his costs, unless the Judge shall, immediately after the trial in open Court, certify to the contrary. Then comes the 4th section, and it is said that we are to construe this in the same manner as the first, because they are both made in pari materia. But I do not feel that we are entitled to put the same construction upon both. On the contrary, I think that if in the same act of parliament one set of words is used in one section, and a different set of words is used in another section, relating to a similar subject, the probable conclusion is, that the legislature intended that a different construction should be put upon these different clauses; for, if they intended that the same construction should be put upon the two clauses, we should have found some reference in the 4th section to what had been enacted in the first, by some such words as that the certificate should be granted “ in the manner aforesaid.” But there is no such reference to the first section. On the contrary, the 4th section contains an express enactment applicable to a different sort of case, for it enacts " that in all actions of trespass, wherein at the trial of the cause it shall appear and be certified by the judge under his hand upon the back of the record, that the trespass upon which any defendant shall be found guilty, was wilful and malicious, the plaintiff shall recover not only his damages, but his full costs of suit.” Now I am of opinion, upon the construction of this section, that if it should appear to the Judge that the trespass was wilful and mali




cious, the certificate need not be granted at the time of the trial in open Court, but may be granted at any intermediate time between verdict and judgment. That seems to me to be the best and most reasonable construction, because it enables the Judge to take a little time to consider in what manner his discretion shall be best exercised upon the whole review of the case, instead of calling upon him to act, perhaps, at a late hour of the night, when his attention is fatigued, and when he has not the best means of duly considering in what manner his discretion should be exercised. This appears to me to be the soundest and truest construction of the statute.

BAYLEY, HOLROY D, and Best, Js. concurred.

Rule discharged with costs.

award execu



February 12. Chitty on a former day obtained a rule, calling upon This Court the defendant to shew cause why the writ of error brought a Writ of Erupon a judgment of the Common Pleas of the County Pa- ror upon a latine of Durham, should not be quashed, on the ground the C. P. of

judgment of that it was brought against good faith; and why the plaintiff Durham, nor should not be at liberty to sue out execution in' this Court, tion upon the notwithstanding the allowance of the writ of error. judgment,

though the

Writ of ErLittledale, on shewing cause, was stopped by the Court. for may have

been brought against good

faith. Chitty, in support of the rule, contended, first, that the Court might quash the writ of error, on the ground that it was brought against good faith, and after the defendant had offered to pay the money; and second, that inasmuch as the writ of error had removed the proceedings of the inferior Court into this, it was competent for this Court to award


execution upon the judgment. He cited Cates v. West (a), as an authority for shewing that where a writ of error is brought against good faith, the Court will not prevent execution issuing.



ABBOTT, C. J.-We have no authority to quash the writ of error, and it is quite clear that we cannot issue execution upon the judgment of an inferior Court.

Bayley, J.-You desire the writ of error to be quashed. The consequence of that would be, that the judgment below will stand good. Then the execution must issue out of the Court below. We cannot issue execution upon a judgment brought here upon error.

Best, J.(6) concurred.

Rule discharged with costs. (6) Holroyd, J. was gone to chambers.

(a) 2 T. R. 183.


Butt v. VINE. February 12. Where a de ON shewing cause against a rule for discharging the defendant gave a fendant out of custody on filing common bail, the case was promise to pay a debt as to this : The defendant had been discharged under the Insolwhich he had been dis- vent Debtor's Act, 1 Geo. 4. c. 119., as to a debt which he charged under owed the plaintiff. After he was discharged he voluntarily an Insolvent Act: Held, proposed to pay the plaintiff ten shillings in the pound, in that he could full satisfaction of the same debt. Upon this, the plaintiff, not be arrested and held to who treated it as a new promise to pay the debt, arrested bail upon

such promise.

the defendant, and hield him to bail.

Platt shewed cause against the rule, and contended that the defendant might be held to bail upon his new promise, notwithstanding his discharge under the Insolvent Act.


H. Cooper, contrà, relied upon Wilson v. Kemp (a), Peers v. Gadderer (b), as authorities for shewing, that whatever might be the defendant's liability to pay the debt upon the supposed promise, he could not be held to bail.



He may

Per CURIAM. Where a party, discharged by his certificate, or under an Insolvent Act, voluntarily promises to pay a debt contracted previously to his bankruptcy or insolvency, he cannot be held to bail for such debt. He liable to pay, but whilst his liability remains in dubio, he ought not to be detained in custody. But at all events here was only a proposal to pay ten shillings in the pound, and not a promise; and though a proposal to pay may be accepted, yet the party cannot be arrested under such circumstances.

Rule absolute.

(a) 3 M. & S. 595.
(6) Ante, vol. ii. 240. See Horton

v. Moggridge, 6 Taunt. 563, and
Bayley v. Dillon, 2 Burr. 736.



February 12. In this case the defendant had been arrested in Trinity where a devacation, but the sheriff's officer, instead of requiring arrested, and him to give a bail bond, took money in lieu of bail, the sheriff's and in the month of November wrote to the plaintiff's money instead

officer took attorney, stating that he could not find the defendant. of a bail bond,

from the deWhereupon the plaintiff issued another writ, to which fendant, and the officer returned cepi corpus; the fact being, that then wrote to

the plaintiff at the time of the return, the defendant was a prisoner that

he could in the King's Bench prison, upon other process. The not find the de

fendant; and body rule was served upon the sheriff on the 5th instant, an alias writ

was issued, to returnable on the 11th, the defendant being then in cus- which cepi cortody. On the 9th the sheriff's officer put in bail, and now pus was re

turned, the defendant being then in custody upon other process, and pending a body rule, the officer put in bail, and then brought up the defendant by habeas corpus, to be surrendered in discharge of his bail, the Court refused to relieve the sheriff, and granted an attachment.

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