1824. M'GREGOR v. THWAITES. tent as witnesses to prove that they were spoken. The meaning of the rule in Lord Northampton's case is, that the person who repeats the slander, must not only say who the person was who originally published it, but he must be the witness to prove it. Therefore upon that ground also, this case differs from Lord Northampton's, and the defendants' pleas being bad in point of law, the plaintiff is entitled to have judgment entered for him notwithstanding the ver dict. Rule absolute. Wednesday, The Court entered an exoneretur on THORN and others v. HUTCHINSON and another, Bail of ARCHBOLD shewed cause against a rule obtained on a former day, for setting aside the execution against the dethe bail-piece fendants, and entering an exoneretur on the bail-piece, under after execution against the following circumstances: The defendant, J. Hutchinson, the bail, where was arrested in April, 1823, for the sum of 1947. 17s. and the defendant action was rendered in no notice of execution. in the original gave bail to the action, which proceeded to judgment, and judgment was signed on the 11th June. A writ of capias due time, but ad satisfaciendum was issued against the defendant on the the render had 30th March, 1824, to which the Sheriff returned non est been given un- inventus. In Easter Term writs of scire facias and alias til the goods of the bail had scire facias were respectively lodged with the Sheriff of been taken in Middlesex against the bail, to which the Sheriff made his return, and on the 28th May a writ of fieri facias was issued into the county of Surrey, under which the goods of R. Hutchinson were seized in execution. On the 30th May the attorney for the defendants gave notice to the plaintiffs' attorney that the defendant, in the original action, had been rendered in discharge of his bail on the 17th April, which was the second day of Easter Term. Under these circumstances, the question was, whether J. Hutchinson, the defendant in the original action, was rendered in sufficient time to discharge his bail. It was contended that the render was a nullity altogether, inasmuch as no notice of it had been given before proceedings were had against the bail. This was a regular execution, and notice of the render not having been given until after it was executed, this application came too late. Crowder, contrá, was stopped by the Court. ABBOTT, C. J.-We think that the defendant in the original action was rendered in sufficient time to exonerate the bail, but inasmuch as no notice of the render was given until after the proceedings against the bail were taken, we are of opinion that the rule for entering an exoneretur on the bail-piece, can only be made absolute on payment of the costs which have been since incurred. Rule absolute on payment of costs (a). (a) Littledale, J., was absent. 1824. THORN v. HUTCHINSON. HUNTER 7. SIMPSON and another. Wednesday, Court a defen non-bailable quarto die post ARCHBOLD, on a former day, obtained a rule calling By the pracupon the defendants' attornies to shew cause why they should tice of this not enter an appearance for the defendants pursuant to their dant served undertaking. On the 12th June a special capias was sued with a copy of out against the defendants, returnable" on the morrow of process by original, has eight the Holy Trinity." The defendants' attornies having pre- days from the viously desired that process should be sent to them, the plaintiff's attorney waited upon and left with them on the 14th June a copy of the writ for each of the defendants, process, to whereupon the defendants' attornies wrote upon the back of enter an apthe process the following undertaking,-" H. and S. under- pearance. take to appear for the defendants in this action in due time. 14th June." This rule having been obtained on the 23d June, the question for the opinion of the Court was, whether or appearance day of the re turn of the 1824. HUNTER 0. SIMPSON. the application was not made too early, according to the practice of the Court. Chitty shewed cause, and contended that the present rule was moved for too early, for by the practice of this Court in non-bailable process, by original, the appearance need only be entered within eight days after the appearance day, or quarto die post of the return of the process. This practice was so laid down by Mr. Tidd (a). Now here, the process being returnable on the morrow of the Holy Trinity, [14th June] the defendants were not bound to enter an appearance until the 26th June, which would be within eight days after the quarto die post, or appearance day of the return of the process. Archbold, in support of the rule. This question depends upon the construction of the acts of parliament relative to the entering of a common appearance, and not upon any rule of practice which may have obtained without reference to the language used by the legislature. Undoubtedly the books state the practice in this Court to be as stated on the other side, but the books of practice are erroneous upon this point. The practice as to the service of non-bailable process is a matter occurring so seldom, that possibly the error now pointed out may have crept into the filacer's office, and no notice taken of it. Now, by the 12 Geo. 1. c. 29. s. 1., which first gave the common appearance, it was enacted that it should be entered "at the return of the process or within four days after such return," and the same expression is adopted in the 5 Geo. 2. c. 27. s. 1. for "the defendant shall appear at the return, or within eight days after such return." The time, therefore, allowed for entering the appearance, according to this latter statute, is eight days from the return, and not from the day of appearance. The books of practice, therefore, are erroneous in laying it (a) Tidd, 8th ed. 240. Imp. K. B. 9th ed. 618. 2 Chit. Rep. 35. 1 Arch. P. 299, 300. down that the appearance is to be entered within eight days after the quarto die post of the return of the process. The day usually called the quarto die post is given at common law, by favor of the Court, and not by the statute. The present point is to be determined by the language of the act of parliament, which speaks of the return of the writ, and does not mention the quarto die post. The Court of Common Pleas has acted conformably to the words of the sta tute, and has ruled that the eight days shall be reckoned from the return day, and not from the quarto die post of the return of the process (a), and therefore, unless the practice which has obtained in this Court be inflexible, the Court will come back to the true construction of the statute. ABBOTT, C. J.-Still this is a question of construction, and we must determine what is the meaning of the words of the statute" return of the process." The Common Pleas has construed them to mean the very day. It seems, however, that this Court has construed them to mean the quarto die post or the appearance day. Which of the two constructions is the correct one, may be matter of doubt. It is certainly desirable that the practice of both Courts should be made uniform, but it is impossible to say that the attornies in this case have done wrong in conforming to that which has been hitherto considered the rule of practice in this Court. Whether we shall hereafter think fit to promulgate a new rule of practice upon the subject, is another matter. The question is, whether, by the practice of this Court, the plaintiff has not moved too soon, and we think he has, and therefore the rule must be discharged, but without costs. Rule discharged without costs. (a) Tidd, 8th ed. 241. Imp. C. P. 216. 17 Pr. Reg. 32 Barnes. 245, 6. 1824. HUNTER v. SIMPSON. 1824. Wednesday, ASPIN ALL V. STAMP and Another, Assignees of SHAW, a June 30. order the de fendant was allowed to go to trial upon payment of a certain sum of money, together with the costs of the cause up to the date of the order; and the Held, that the costs taxed in his favour on the postea could not be set off against the interlocu Bankrupt. By a Judge's PARKE moved for a rule to shew cause why the defendants should not be at liberty to deduct the sum of 46l. 13s. amount of plaintiff's taxed costs upon interlocutory proceedings in this cause, from a sum of 1327. 10s. amount of taxed costs due to defendants upon the result of the trial of the cause. The facts disclosed on affidavits were these. It was an action of trespass for seizing certain goods and chattels claimed as the property of the plaintiff, and the defendant hav- venue was laid in Yorkshire. The defendants justified the ing recovered a verdict with- trespass under the statutes concerning bankrupts, as asout previously signees of Shaw the bankrupt. After the issue was made complying with the terms up, and notice of trial given, the defendants, having some of the order: doubt whether all the goods in question belonged to their bankrupt, applied to the Lord Chief Justice at chambers, who, under the circumstances then disclosed, made his special order, whereby he directed that, upon payment of the sum of 201. together with the costs of the cause up to the tory costs, so date of the order, the defendants should be entitled to a as to deprive the plaintiff's verdict in their favour, unless the plaintiff should at the attorney of his trial prove, that the value of the goods, mentioned on the back of the order, exceeded the sum of twenty pounds, or should prove a trespass as to entering the dwelling-house, or taking some of the other goods enumerated in the declaration. On the 19th March last, this order was served on the plaintiff's attorney, who resided at Hull, the commission day at York being the 20th of March, and the cause being set down in the first division. On the same day the order was served, the defendants' attorney tendered the sum of twenty pounds to the plaintiff's attorney, and at the same time told him, that the costs not having been taxed, he did not know the amount, but promised that as soon as they were ascertained they should be paid. The plaintiff's at lien. |