IS24. VANDERHA DEN BRITTEN. brought up the defendant by habeas corpus, for the purpose of surrendering him in discharge of his bail. F. Pollock opposed the surrender of the defendant on the ground that the sheriff's officer having misconducted himself in originally taking money instead of a bail bond, he was not at liberty now to surrender the defendant under the circumstances stated. Abraham contrà, produced an affidavit exculpating the sheriff from blame, and submitted that the sheriff ought not to be fixed in consequence of the culpable conduct of his officer. PER CURIAM. The officer and the sheriff are the same person in the eye of the law. It is a great object with the Court to enforce performance of ministerial duties. If the sheriff's officer ventures to take money instead of discharging his duty by taking a bail bond, we will not relieve him. It is only by the pressure of being fixed in these cases, that he is prevented from doing the same thing in others. The refusal to relieve in this case will operate as security for his future good behaviour. The defendant was remanded, and the Court granted an attachment against the sheriff, for not bringing in the body. Thursday, February 12. Under the stat. 22 & 23 Car. 2. c. 9. JOHNSON v. STANTON. THIS was an action of assault and battery, and at the trial before Hullock, B. at the last assizes for Shropshire, the a Judge's cer- jury found a verdict for the plaintiff, damages one farthing. tificate for costs in actions of assault and battery, may be granted at any time between verdict and final judgment. Four days after the trial, the learned judge, who had not then quitted the assize town, granted a certificate under the 22 and 23 Car. 2. that an actual battery had been proved, so as to entitle the plaintiff to his full costs. The Master upon the taxation allowed the plaintiff his full costs accordingly. W. E. Taunton on a former day obtained a rule nisi for the Master to review his taxation, on the ground that by the statute in question, the judge ought to have granted his certificate at the trial, in order to entitle the plaintiff to his full costs, and as the certificate had been granted four days after, it was void. Campbell now shewed cause, and contended that the certificate had been granted in due time within the intent and meaning of the statute, which provides "that in all actions. of assault and battery, wherein the judge at the trial of the cause shall not certify, &c. the plaintiff shall not recover more costs than damages." Now the expression "at the trial" could not be construed to mean, on the very day of the trial, but must be understood as leaving it in the discretion of the judge to grant a certificate at any time after the trial, and before final judgment. Here, in point of fact, the certificate was granted by the judge before he left the assize town; and at all events the judge was not tied down to the very moment the trial was over. In Butler v. Cozens (a) it was considered as a matter of course, that the judge might certify at any time after the trial, and the Court adjourned that very case to see if the judge who tried the cause would certify. The court will give the same liberal construction to the statute as they gave in the case of Woolley v. Whitby. (b) Taunton, in support of the rule. Butler v. Cozens is no 1824. JOHNSON 0. STANTON. 1824. JOHNSON v. authority to govern this case, because the question there arose upon the fourth section of 8 and 9 W. 3. c. 11. This application is founded upon the 22 and 23 Car. 2. c. 9. the STANTON. language of which is very different. Reading the words of this statute according to the fair grammatical construction, the judge is "to find and certify the assault and battery sufficiently proved at the trial of the cause." According to the literal meaning of the words, " at the trial" imports immediately after the trial. The case of Ford v. Parr, though it arose upon the stat. 8 and 9 W. 3. c. 11. the words in which are a little different, applies in principle to the construction which ought to be given to this statute. [Bayley, J. The words of the first section there, are "immediately after the trial in open court," and there is some difference between the words "after" and "at."] At the trial means, in common understanding and grammatical construction, immediately after the trial, and therefore this certificate was not granted in time. ABBOTT, C. J.—I do not think the words of this statute are to be distinguished in sense and substance from those of the fourth section of 8 and 9 W. 3. c. 11. It is very difficult to give them a literal construction. The judge cannot certify at the trial, because the verdict must be given and the trial over, and the verdict recorded, before he can certify. We must confine the words, " at the trial," to the finding of the verdict, but not to limit the certificate precisely to the day of the trial; because it is most convenient, upon a matter which is to be purely discretionary, that some convenient time should be allowed to the judge for consideration, in order that his discretion may be duly exercised. It is much better to lay that down as the safest rule of construction, than to say that the judge must act upon the immediate impression at the moment when the cause is ended. It seems to me therefore that we ought to put the same construction upon this statute that we have already put upon the statute of William. Convenience, and the reason of the thing, au thorize us to put this construction on these words, although they may be in some degree distinguishable from those in that statute. BAYLEY, J.-It is desirable to put the same construction upon this statute as we did upon the statute of William, although there may be some difference between the language of one and the other. The statutes 43 Eliz. c. 6 and 7 Jac. 1. c. 5. do not require that the certificate shall be granted at the trial. We have already decided that it is not necessary, under the statute 8 and 9 W. 3.; and the only cases in which it is necessary that it should be granted at the time of the trial are those mentioned in the first section of that statute, and that is, because the words there cannot be satisfied by any other construction, and because they deviate from the words used in the prior statutes, which I have mentioned. BEST, J.-If this case were to be decided as a mere question of grammatical construction, I should put the same construction which Mr. Taunton puts upon the words of the statute, because when the judge "at the trial of the cause shall not find and certify," the grammatical construction is, that both these things should take place at the time of the trial. But so early as the 11th Modern Reports the determination put upon them is, that it is only necessary it should appear to the judge that the assault and battery was sufficiently proved, but that it is not necessary he should grant his certificate at the time of the trial. I agree that the construction now put upon this statute is the most convenient, because it gives the judge an opportunity of considering at his leisure whether the case is one in which he ought or ought not to certify. Rule discharged without costs. Holroyd, J. was gone to chambers. 1824. JOHNSON v. STANTON. 1824. Thursday, February 12. COULSON V. HAMMOND. Where A. be- WILDE, on a former day, obtained a rule nisi for setting came bail to the 13th, the quarto die post, and the four days after post expired on the 20th April, and A. became bankrupt on the 9th: Held that the bail bond the sheriff up- aside interlocutory judgment signed against the defendant, on a testatum for want of a plea, under the following circumstances :capias against B. returnable Joseph Brown was arrested upon a testatum capias at the 16th being the suit of the plaintiff, returnable in 15 days of Easter (13th April), the 16th being the quarto die post, and the four days after the quarto die post expiring on the 20th. The the quarto die defendant became one of his bail to the sheriff and executed a bail bond for his appearance at the return of the writ. A commission of bankrupt issued against Hammond on the 19th April, under which he was duly declared a bankrupt and had since obtained a certificate. The sheriff executed an assignment of the bail bond on the 24th April to the die post, the plaintiff, who commenced this action on the bail bond, and days being al- signed interlocutory judgment against the defendant for lowed merely want of a plea, and having been taken in execution on a ca. ex gratiâ, and that the penal- sa. on the judgment, the object of the present motion was ty of the bond to discharge him out of custody on the ground that the cause of action had accrued before the issuing of the commission by the forfeiture of the bail bond, and consequently the debt being proveable under the commission the defendant was protected by his certificate. The question was, whether, in point of fact, the bail bond was forfeited before the 20th of April, being the fourth day after the quarto die post? was forfeited on the quarto other four was a debt proveable under the com mission, and was barred by the certificate. R. Y. Richards now shewed cause, and on the authority of Frampton v. Barber (a) contended that the bail bond was not forfeited on the 19th of April, when the commission was issued, because, by the practice of the court, where the action is by original, the defendant has till four days after the quarto die post to put in bail. Wilde, in support of the rule, was stopped by the Court. (a) 4 T. R. 377. See Dent v. Weston, 8 T. R. 4. |