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SMIRE.

1806.

INDAMUS to the justices of Staffordshire to The King TV tersus .

** receive and enter a continuance on an appeal The justices of against an order of removal, till the next general quar. STAFFORD

ter sessions, and there to hear and determine the same was applied for, by

Clifford, who stated that an “ appeal had been , entered the next sessions after the order, but notice had not been given to the respondents. The justices thinking there had been time for such notice dismissed the appeal."

On moving to make his rule absolute he stated that the statute 9 Geo. I. c.7, s. 8, bad been variously construed. In the King v. the North-riding of Yorkshire, it was thought to be discretionary lo respite the appeal for want of notice, that in the case of the King v. Buckinghamshire, it was held to the contrary. It was now thought to be peremptory.

Sir V. Gibbs, therefore, made no objection, the opi. pion of the court being clearly with the decision in the case of the King v. Buckinghamshire.

RulE ABSOLUTE for a MANDANUS.

Robertson against PATTERSON.June 6th. Sint. 23 Geo. IV here a seafaring man is arrested for a debt ofless than 201. and has 111. c. 23,8.22, given bail, and is aflerwards impressed into his majesty's service,the Bail. ExoneJetur. Seaman, bail by the equity of the statute 23 Geo. III. c. 33. s. 22, are

entitled to have an exoneretur entered, if they be not indemnified, and the impress is without collusion,

ROBERTSON

versus PATTERSOx:

HIS was a rule calling upon the plaintiff to shew

cause why an exoneretur should not be entered upon the bail piece. The principal was arrested for a debt of 191. and bailed, and was afterwards impressed into his majesty's service. An application was then

ROBERTSON

made to this court for a writ of habeas corpus, that he 1806, might be surrendered into court, and then remite ted to the custody of the commander to whose ship versus he belonged, and the bail be thereby discharged.

PATTERSON That motion was, however, rejected; LAWRENCE, J. suggesting, that, if the bail were entitled to have the man brought into court merely to be surrendered and then sent back, they might as well apply to the court to be discharged, on the ground of their not being able to surrender him, for that the theatrical exhi, bition of the person of the defendant in court could be of no real service, and it might as well be effected without the aid of such a useless farce. The present rule was therefore obtained,

LAWES now shewed cause. « The bail stipulate, at all events, that the principal shall render or pay the damages ; there is no qualification to their undertaking. This has been assiinilated to the cases under the alien act; but there it is uncertain whether the defendant will ever return. Here, the bail must always have known that the defendant was liable to be taken away, by being impressed, as well as that he might voluntarily secrete himself or run away. Non constat but he may be at large before proceedings are had against the bail. They should shew an extreme case of hardship before they are entitled to indulgence; they knew he was liable to be impressed, for he was mate of a fish. ing smack."

Lord ELLENBOROUGH, C. J. « Is there not a case of surrendering a man who was insane?"

Lawresce, J. " The court refused in that case ; the ground of the application is that if the defendant had been in the service of his majesty, before this action he would not be liable to be arrested. On any act of his own this motion could not be founded."

1606.

• 'Lord ELLENBOROUGH, C. J. “ The distinction is RØR RISON

* taken in the case of the alien act, that let nemini fecit

injuriam, the party being sent out of the kingdom by act of law."

Lawes. “Those cases are settled in Merrick v. Taucher.*

versus PATTERSON.

· LAWRENCE, J. “Suppose he' were now at large, and to be surrendered by the bail could he not be discharged immediately.”

Lawes then relied upon a part of the affidavit from which he inferred that the bail were indemnified, and on that ground contended that the bail could not be entitled to relief.

Sir ViCary Gibbs and EsPINASSE relied upon the general principle above suggested, and the statute 39 Géo, NII. c. 33, and cited Bond v. Isaacs,t where the defendant was surrendered and then immediately turned over to the keeper of the Saroy. · LE BLANC, J. “ Suppose a man enters voluntarily."

Lawes. “ It is very easy to procure a man to be impressed." · Le Blanc, J. " It would be an answer to the application to have shewn that the bail procured the in. pressing of their principal themselves.”

Lord ELLENBOROUGH, C. J. “ Has the crown a right to detain bim after being arrested, and that against the rights of the parties ! That is one of the difficulties which occur to me.” Afterwards, upon looking into the statute, his lordship said, “ It stands thus, the immediate right of the party to hold the person

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ROBERTSON

ver 35 PAITELSON.

of the defendant is suspended; the bail are put in his 1545. place ; there was a right to arrest hiin at the time; Roi afterwards the crown interferes and acquires a positive right to his person. And by 23 Geo. III. c. 33, s. 22, no petty officer or seaman shall be liable to be taken out of his majesty's ships of war by any process otherwise than for a criminal offence, unless for a real debt contracted, by him before he belonged to his majesty's service, and unless the plaintiff, &c. shall make affidavit, &c. that the debt or damages amounts to 201. at the least, a memorandum of which shall be marked on the process.” And, if such person is aç. rested, a judge is to discharge him and give costs of the arrest. The question is therefore, “ whether any execution of ours shall defeat that provision, and whether the bail are in a situation to take him ; which they are not, for, by the act of law another person has acquired a right to his person."

The court, therefore, agreed that the bail were entia , tled to be discharged auless they were indemnibed, in which case they could not be injured. An affidavit was required as to this point, and it appearing that they were not indemnified.

The RCLE was made ABSOLUTE.

SEDGEWICK against ALLERTON.-- June 19.

Where a summons is obtained for time lo plead and indorsed, the Practice..

defendant must draw up and serve the order, or it will be null, Pha and the plaintiff may sign judgment. ULE to shew cause why an interlocutory judgment SIDOENICK.

should not be set aside for irregularity. Declara- versu, tion was delivered the 10th of May, and before the time for pleading expired, the defendant ivok out a summons for time to plead, which the plaintif's attor

ALLER OX

1806.

EDO EWICK

ter's us ALLERTON.

ney indorsed for eight days; within that time, no order being drawn up, the plaintiff signed judgment, and afterwards, but still within the time allowed by the indorsement of the summions, the defendant pleaded the statute of limitations."

Park shewed cause and contended that it was not necessary to draw up the order."

But, bÝ THE COURT, without drawing up and serving the order, the summons and indorsement was to be considered as a nullity. It is necessary to prevent mistakes as to the terms agreed upon.

It afterwards appeared that the defendant was entitled to an inparlance, even without the taking out a summons, and upon that ground the rule was made

ABSOLUTE.

STRACIEY and Giles against Turley, BURT and

Others. Stat. 28 Geo. Two several yelilions #øre presented against the return of a mene III, c. 52. . Petitionin Pat. ber for G. which, being referred to a committee, were pronounced liament. Cosis. cach frivolous, held that the costs could not be taxed jointly under

28 Geo. 111.c. 52.

versus TURLEY

Stracker THIS was an action of debt in which the plaintiffs

declared that the defendants were indebted to And Others. them in 151. gs. 6d. by virtue of the statute 28 Geo.

III. c. 52, entitled an act for the further regulation of the trials of controverted elections or returos of members to serve in parliament; to which the defendants pleaded nil debent. There was a similar action by the same plaintiffs for the like sum against Frost, with the like plea; and a third similar action by the plaintiffs against Frost and Turley, and the other de. pendants named in the first action for 6791. 198. 10d.

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