EARLIER against LANGUISHE.

1814.

27th June.

not discharge

MARRYAT moved for a rule to shew cause why The Court will the defendant should not be discharged out of the defendant custody on filing common bail, on affidavits stating that the defendant had become a bankrupt in Bremen, and had there obtained a discharge of his person from all imprisonment for debts.

Lord ELLENBOROUGH C. J. You had better plead it; we cannot so far pay deference to the law of Bremen as to suffer it to alter the law of England.

BAYLEY J. asked if the debt had been contracted in this country or in Bremen.

Marryat. In Bremen. If we were to plead it, the defendant must, in the mean time, remain in custody.

PER CURIAM. There are precedents for such pleas. But we cannot grant the present application.

Rule refused.

out of custody
on filing com-
mon bail, on
the ground of
his having be-
come bankrupt
and obtained
his certificate
in Bremen,

where the
debt was con-

tracted (a).

(a) The Court of King's Bench has refused to discharge a defendant out of custody who was arrested at the suit of a creditor resident here, on the ground that the debt was contracted in a foreign country, in which the defendant had become a bankrupt and obtained his certificate, and the plaintiff might have proved his debt under the commission. The Court observed, that it did not appear that the plaintiff was resident in the foreign country at the time of the bankruptcy; and therefore they would not decide the question in a summary way, but put the defendant to plead that he was discharged by the bankruptcy and certificate. See Pedder v. MF Master, 8 T. R. 609. Quin v. Keeffe, 2 Hen. Bla. 553. The plea suggested by the Court was accordingly filed, but the Court held that it was incorrect in point of form, and the matter never came on again. 1 East, 12. A discharge under a foreign commission of bankruptcy is no bar to an action for a debt arising in this country. Smith v. Buchanan, 1 East, 6. See the form of Plea in Potter v. Brown, 5 East, 124.

ATTACHMENT.

1816.

26th June.

sued out an original against the defendant in his wrong

name, the præcipe being right, and defendant put in bail in his right name,

BOSWELL against ATKINS.

Where plaintiff COMYN, on a previous day, had obtained a rule to shew cause why an attachment issued against the sheriff, for not bringing in the body of the defendant, should not be set aside. The plaintiff sued out an original against the defendant by a wrong name, though the pracipe was right, and the defendant Court set aside put in bail in his right name. The sheriff being ruled to return the writ, returned cepi corpus. The plaintiff not finding bail in the cause in which the writ was issued, sued out an attachment against the sheriff for not bringing in the body. The defendant had filed an affidavit in the cause in the wrong name.

attachment obtained against the sheriff for not bringing in the body, but

without costs on either

side (a).

Gaselee now shewed cause.

PER CURIAM. The defendant has followed the plaintiff in his error; and though the plaintiff was wrong in the first instance, the subsequent accidental error of the defendant seems to have put it so far right, as that the attachment should be set aside, without costs on either side.

Rule absolute, without costs on either side.

(a) If a defendant, sued by a wrong name, appear and perfect bail in his right name, without identifying himself as the person sued by the other name, the plaintiff may treat the bail as a nullity, and attach the sheriff. Rex v. Sheriff of Suffolk, 4 Taunt. 818.

COULSON against GRAHAM.

THE parties had entered into a submission to an arbitration, and an award was made against the defendant; but as he did not perform the same, the plaintiff made the submission a rule of Court, and then issued an attachment against him. The Master of the Crown Office reported that the defendant and Mr. Tomlinson, his attorney, were in contempt, and were now in Court to receive judgment.

Taddy moved that the persons in contempt might be permitted to file affidavits, and be heard in their defence. The Attorney-General contended that it could not be done.

Lord ELLENBOROUGH C. J. The report of the Master must be taken as a conviction, and we cannot now receive affidavits in denial of the contempt, but we will in mitigation. The affidavit was then read, and parts of it were objected to, as being a denial.

Tindal was then heard for the prosecutor, and cited Rex v. James Wheeler, 3 Burrows' Rep. 1256.

Lord ELLENBOROUGH C. J. In that case the expressions of indignation were certainly not too strong. Fined 50%., and committed till paid.

(a) See Tidd, 7th ed. 494, 5.

REX against

THESSIGER moved for a rule for an attach- The rule for an ment against the defendant, for nonpayment of attachment for money in pursuance of an allocatur, is only arule nisi when the allocatur is founded on an award (6).

(6) For noupayment of costs on the Master's allocatur, the rule for an

nonpayment of

1818.

REX against

money in pursuance of the master's allocatur. The allocatur was founded on an award, and the application was made for a rule absolute in the first instance.

PER CURIAM. The motion is grounded on the Master's allocatur, but that allocatur was made in pursuance of an award. On referring to the Master, we find that a rule nisi only can in the first instance be obtained.

Rule Nisi granted.

attachment is in general absolute in the first instance. Tidd's Prac. 6th ed. 496. Thomson v. Billingsley. For nonpayment of money, generally, a rule to shew cause only is in the first instance granted: and even on the Master's allocatur, when that is founded on an award, the rule is only a nisi at first, ut supra. So in C. P., the rule for an attachment is, in general, only a rule to shew cause; but for nonpayment of costs on the Prothonotary's allocatur, the rule is absolute in the first instance. Chaunt v. Smart, 1 Bos, & Pul. 477. The rule is there said to be, that where an excuse can be offered, an opportunity of shewing cause ought to be given.

Attachment

not set aside on

the grouud of delay, unless there have been

REX against SHERIFFS OF LONDON, in a Cause of
HOBHOUSE against MIDDLEDITCH.

against sheriff URTON obtained a rule to shew cause why the
TURTON
attachment which had issued against the late
sheriffs of London should not be set aside, on the
ground of laches on the part of the plaintiff. The
facts stated in the affidavit were, that the writ was
returnable the first day of Michaelmas Term; that
defendant was arrested, and a bail-bond taken; that

gross laches on the part of the plaintiff to the

prejudice of the sheriff (a).

(a) Where the rule for an attachment against the Sheriff for not bringing in the body was obtained on the 11th of February, and the attachment, which was returnable on the 4th of May, was not issued till the day before the return, and in the mean time the defendant became bankrupt on the 19th March, by which means the Sheriff lost his opportunity of proving it under the commission, the attachment was set aside, on the ground of laches. The King v. The Sheriff of Surrey, 9 East, 467.

plaintiff did not rule the sheriffs to return the writ until the 26th of November, nor move for the attachment in question till the 29th of January. That in the interval the defendant and the bail had become insolvent.

Marryat and Espinasse shewed cause, on an affidavit stating that the defendant was not arrested under the plaintiff's writ, but was in custody at the time when it was returnable, and the defendant was detained under it; that believing him to have been in the sheriff's custody, no rule to return the writ was given; that the sheriff took bail during the Term, and let the defendant go at large, and as soon as the plaintiff heard it, viz. on the 25th November, or the next day, the 26th, he gave a rule to return the writ, on the first day of Hilary Term a rule to bring in the body, which expired on the 28th, and the next day the attachment was obtained. It was admitted that the Court had, in some instances, relieved the sheriff, as in The King v. v. The Sheriff of Surrey, 7 Term Rep. 452. Rex v. Perring, 3 Bos. & Pul. 151. and The King v. Sheriff of London, 1 Taunton's Rep. 111: but in all those cases a long interval had elapsed. In the first of these cases the sheriff returned cepi corpus in Hilary Term, upon which the plaintiff proceeded no further until Michaelmas Term following, and then the bail having become insolvent, and the defendant absconded, this Court thought it unreasonable that the sheriff should be called upon to return the writ after such delay, and held that the attachment must be set aside. In the present case no such laches have intervened. The first rule was taken out the very Term the writ was returnable, and regularly followed up. They contended, therefore, that the rule ought to be discharged. The Court held that in this case there was not such

HOBHOUSE

against MIDDLEDITCH.