1806.

cersus

The Justices of
STAFFORD-

The KING MANDAMUS to the justices of Staffordshire to receive and enter a continuance on an appeal against an order of removal, till the next general quarter sessions, and there to hear and determine the same was applied for, by

SMIRE.

III. c. 23,s.22, Bail. Exoneretur. Seaman,

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, had been variously construed. In the King v. the North-riding of Yorkshire, it was thought to be discretionary to 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 opipion of the court being clearly with the decision in the case of the King v. Buckinghamshire.

RULE ABSOLUTE for a MANDAMUS.

ROBERTSON against PATTERSON.-June 6th.

Stat. 23 Geo. Where a seafaring man is arrested for a debt of less than 201. and has given bail, and is afterwards impressed into his majesty's service, the 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 THIS was a rule calling upon was a rule calling upon the plaintiff to shew cause why an exoneretur should not be entered upon

versus

PATTERSON 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

made to this court for n writ of habeas corpus, that he might be surrendered into court, and then remit ted to the custody of the commander to whose ship he belonged, and the bail be thereby discharged. 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 exhibition 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 assimilated 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 fishing smack."

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

LAWRENCE, 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."

1806,

ROBERTSON

versus

PATTERSON

1806.

RENERISON

versus

PATTERSON

Lord ELLENBOROUGH, C. J. "The distinction is taken in the case of the alien act, that ler neminifacit injuriam, the party being sent out of the kingdom by act of law."

LAWES.
Vaucher.

"Those cases are settled in Merrick v.

LAWRENCE, J. "6

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 32 Geo. III. c. S3, and cited Bond v. Isaacs, where the defendant was surrendered and then immediately turned over to the keeper of the Savoy.

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 im pressing of their principal themselves."

"Has the crown a

arrested, and that That is one of the

Lord ELLENBOROUGH, C. J. right to detain him after being against the rights of the parties? 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

of the defendant is suspended; the bail are put in his place; there was a right to arrest him at the time; 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 acrested, 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 entitled to be discharged unless they were indemnified, 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 RULE was made ABSOLUTE.

SEDGEWICK against ALLERTON.-June 18.

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, Pica and the plaintiff may sign judgment.

RULE to shew cause why an interlocutory judgment Sparwick. should not be set aside for irregularity. Declara

tion was delivered the 16th of May, and before the time for pleading expired, the defendant took out a summons for time to plead, which the plaintif's attor

Lersus

ALLER ON

1806.

SEDGEWICK

vers us

ALLERTON.

111. c. 52.

Petitionin Par

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 summons, the defendant pleaded the statute of limitations."

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

But, BY 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 mis takes as to the terms agreed upon.

mis

It afterwards appeared that the defendant was enti tled to an imparlance, even without the taking out a Summons, and upon that ground the rule was made ·

ABSOLUTE.

STRACHEY and GILES against TURLEY, BURT and

Others.

Stat. 28 Geo. Two several petitions were presented against the return of a mem• ber for G. which, being referred to a committee, were pronounced each frivolous, held that the costs could not be taxed jointly under 28 Geo. III. c. 52.

liament. Costs.

STRACHEY

versus

TURLEY

of

THIS was an action of debt in which the plaintiffs declared that the defendants were indebted to And Others, them in 15l. 2s. 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 returns members to serve in parliament; to which the defendants pleaded mil debent. There was a similar action by the same plaintiff's for the like sum against Frost, with the like plea; and a third similar action by the plaintiff's against Frost and Turley, and the other defendants named in the first action for 6791. 19s. 10d.