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Judgment of

the court.

upon an irregular judgment, which is afterwards vacated and fet afide by the court; trefpafs vi et armis lies against the plaintiff in that judgment; fee the cafe of Smith verfus Dr. Boucher and others, 2 Stra. 993. and 2 Wilfon 385. where the fame cafe is cited and commented upon by the court, in giving their judg ment in the cafe of Perkins verfus Proctor and Green, Trin. 8 Geo. 3.The cafe of Salmon and Percival, Cro. Eliz. 196. doth not apply to this cafe; that was the cafe of the sheriff, and an officer is not anfwerable upon an irregular writ; the case in Poph. 205. was the cafe of the fheriff; but I do not fee how it applies to this cafe.

The cafe of Philips verfus Biron and another, Eafter 7 Geo. 1. Stra. 509. is a cafe directly in point; it was trefpass and false imprifonment against two, who both pleaded jointly, that there was a judgment against the plaintiff at the fuit of Biron, which was afterwards fet afide by the court, but that before it was fet afide a capias ad fatisfaciendum was profecuted by the then plaintiff Biron, under which he and the other defendant (who was the officer) justify the imprisonment. And on demurrer Wearg objected, that though an erroneous judgment is a juftification, yet an irregular one is not, for that is a matter in the privity of the plaintiff or his attorney. Tho. Raym. 73. The officer indeed, if he had juftified feparately, might have made a better cafe than Biron the then plaintiff, but having joined with him he muft take the fame fate; and of that opinion was the court, (heftante Eyre Juftice) and gave judgment for the plaintiff. I rely upon this cafe, and Smith and Boucher, and pray judgment for plaintiff,

Lord Chief Justice De Grey-This is not a new queftion; the capias ad refpondendum being tefted in Trinity term, and return. able in Hilary term next following is void, and a mere nullity; there is a difference between writs of mefae procefs, and writs of execution; for in the cafe of writs of mene procefs, if a term be omitted between the tefte and return, the caufe is out of court, but that is to be underitood in perfonal actions, for in real actions the law is otherwife, for in them there must be nine returns between the tefte and return: in cafe of a writ of execution the caufe is come to it's end. In cafes of mefne process, it would be hard to fuffer fo long a return, because the body muft lie in prifon, without having an opportunity to make a defence, when perhaps he is able to make a good defence. But in the cafe of a capias ad fatisfaciendum, the defendant ought to lie in execution, and the fheriff ought to have his body always ready to bring to the court when he fhall be commanded by habeas corpus, &c.; thefe are the distinctions taken between writs of capias, with re

spect

fpect to real actions, perfonal actions, mefne procefs, and execu tions, by Holt Chief Juftice, in the cafe of Shirley verfus Wright, 1 Ld. Raym. 775, 776. which is good law.

Parfons the now plaintiff has been illegally imprisoned under colour of a writ fued out against him, which is a mere nullity: he has been unlawfully injured, and must have a remedy; but he has none against the officer, who is not to exercife his judgment touching the validity of the procefs in the point of law, but is obliged to obey the command of the courts at Westminster, or other fuperior courts having general jurifdiction, and he may justify under the writ although it be void, 2 Keb. 705.pl. 69, 844. pl. 81. 3 Keb. 213. 6 Rep. 54. a. -But where a court has no jurifdiction of the caufe, the whole is coram non judice, as was the cafe of Smith verfus Dr. Bouchier and others, 2 Stra. 994which is cited by the court in giving their judgment in Perkins verfus Proctor and Green, and is by the court well obferved upon in my Brother Wilfon's Reports, 2d part, 385. that Lord Hardwicke was of opinion, that trefpafs and falle imprisonment well laid against the vice chancellor of Oxford, the judge, gaoler, officer, and all of them, 10 Rep. 76. a. b. That this action well lies against Loyd the party himself who fued out this void writ, is clear from the cafes of Turner verfus Felgate, 1 Lev. 95. 1 Sid. 272. and many others which might be cited; and to fay now, that this action does not lie against the party himself, would be quieta movere. There is a great difference betwen erroneous process, and irregular (that is to fay void) process, the firft ftands valid and good until it be reverfed, the latter is an abfolute nullity from the beginning; the party may juftify under the firft until it be reverfed; but he cannot juftify under the latter, because it was his own fault that it was irregular and void at firft. It is faid that trefpafs vi et armis is not the proper action, and that a man cannot be made a trefpaffer by relation; but relation is not at all applicable to this cafe, for Loyd who fued T. out this void irregular writ, and caufed Parfons to be unlawfully 2 arrested thereupon, was the principal mover or trefpaffer in this cafe. The act of an attorney is the act of his client, and I am very clearly of opinion that trefpafs vi et armis well lies, and therefore the plaintiff must have judgment.

Gould Juftice-I am of the fame opinion. If a man be unjustly imprifoned, it would be very ftrange indeed, if the law did not give him an action for falfe imprisonment; therefore the queftion before the court is, who is the proper object against whom the action for falfe imprifonment ought to be brought? Certainly the now defendant Loyd who was the plaintiff in the writ which was nullity, and which fhe fued out by her attorney; fhe

fhould

Raym. 73. Sid. 125.

1 Stra. 509. 2 Stra. 993

T. Jones 215.

[See Barker v. Brabam, poft p. 368.]

fhould have employed a more fkilful and diligent attorney, for the act of the attorney, in point of law, in this cafe is the act of the party, the client; and fo alfo is the act of the officer who arrefted Parfons the now plaintiff; I confider it to be the very fame thing as if the now defendant Loyd had been actually prefent when the plaintiff was arrefted, and had ordered the officer to make the arreft, and am therefore moft clearly of opinion that trefpafs vi et armis for falfe imprisonment well lies.

Blackstone Juftice-I am of the fame opinion.

Nares Justice-I am of the fame opinion. Every plaintiff fues out procefs at his peril. In the cafe of Johnson and Norton, 2 Roll. Rep. 442. fpeaking of writs, it is there faid, that a plaintiff may purchase an original returnable two or three terms after the purchase, because it is the delay of the plaintiff himfelf; but if he purchases a capias it is otherwife, and he cannot have it returnable two terms after the purchase, or omit, or pass over one term, for that would be a delay of juftice, and contrary to the ftatute of magna charta, which fays nulli deferemus juftitiam.

Judgment for the plaintiff.

Black. Rep. Young and Gill verfus Hockley or Hockcliffe. C. B.

839. S. C.

Defendant

draws a bill of

to defendant's
own order;
plaintiff's at
his request,

and on pro-
mife to in-
demnify them
accept the
bill, which

C ASE upon an affumpfit, wherein the plaintiffs declared, That the defendant on the 25th of June 1769, at London, on the plain- drew a bill of exchange upon the plaintiffs, whereby he required tiffs, payable them to pay him (the defendant) or his order 57. 55. 4d. one month after the date thereof, and to place the fame to his account; that afterwards, on the faid 25th of June 1769, in confideration that the plaintiffs would accept the faid bill, that the defendant might negotiate the fame for his own use and benefit, the defendant promifed he would pay the faid bill, or supply the plaintiffs with property for payment thereof when it became due, and would indemnify and fave the plaintiffs harmless against becoming due all cofts, charges and expences which they would fuftain, by reafon of their acceptance thereof; and the plaintiffs in fact say, that the confiding in the faid promife, &c. of the defendant, did afterwards on the faid 25th of June 1769, at London, at defendant's requeft accept the faid bill, and which faid bill afterwards, (to wit) on the 26th of June 1769, was negotiated and indorfed away by the defendant for his own benefit; and the

after defend

ant becomes

bankrupt,

pay it to pre fued. Plain

vent being

tiff's cannot prove this as a debt under

the commif

fion, fo the defendant cannot plead his certificate in bar of this action on the promise to indemnify, &c. See ante Goddard v. Vanderbeyden, p. 262.

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plaintiffs

plaintiffs further fay, that afterwards (to wit) on the 28th of July 1769, the faid bill became due; yet defendant, not regard. ing his promife, did not indemnify the plaintiffs, and the plaintiffs paid the faid bill to prevent themselves from being fued at law, to the damage of the plaintiffs. The defendant pleaded two pleas, 1ft, The general iffue non-affumpfit. And 2dly, That on the 11th of July 1769, he became a bankrupt, and on the 12th of the fame month a commiffion of bankrupt iffued against him, upon which he was declared a bankrupt, and that he obtained his certificate on the 5th of September 1769, which was allowed and confirmed on the 23d of October following.

This caufe came on to be tried before Lord Chief Juftice DeGrey at the fittings in London after the laft Eafter term, when a verdict was found for the plaintiffs, fubject to the opinion of the court upon the following ftate of the cafe, viz. it appeared in evidence at the trial, that the defendant, on the 25th of June 1769, drew a bill of exchange on the plaintiffs, who were then his attornies, payable one month after the date thereof, to the defendant's own order, for 571. 55. 4d. which was accepted by the plaintiffs the fame day; that the plaintiffs at the time of accepting the faid bill, or at any time fince, had no effects in their hands belonging to the defendant to answer the faid bill; that on the 12th of July 1769, a commiffion of bankrupt was awarded and iffued against the defendant, who was thereupon found and declared a bankrupt upon an act of bankruptcy committed by him on the 11th of the fame July; that the faid bill of exchange became due on the 28th of July 1769, when the fame was paid by the plaintiffs. That the defendant obtained his certificate on the 5th of September 1769, which was allowed and confirmed on the 23d of October following.

Upon the debate of this cafe the whole court were clearly of opinion, that no debt was owing by the defendant to the plaintiffs before the at of bankruptcy, and that the plaintiff's could not fwear that the debt was due and owing to them before they had actually paid the fame, which was not until the 28th of July 1769, after the act of bankruptcy, and therefore they would not come in for any dividend under the commiffion; and the court faid this cafe was exactly like Goddard verfus Vanderheyden, adjudged in this court in Michaelmas term, 12 Geo. 3. And Ante, 261. therefore they gave judgment for the plaintiffs, and ordered the poftea to be delivered to them.

Morris,

The affignee

of a bail-bond

muft bring his

action there

upon in the

fame court where the original action was

for that court

only feems to

Morris, Affignee of the Sheriff verfus Rees, an Attorney of C. B. one of the Bail of A. B. in C. B.

THE original action brought by Morris verfus A. B. is in the court of King's Bench, and bail not being put in above in due time, the bail-bond hath been affigned to the plaintiff Morris, who hath brought this action thereupon in this court. And now it was moved to fet afide the proceedings, the original action being commenced in B. R. because the act of parliament directing the affignment of the bail-bond, gives the commenced; court, after fuch bonds are put in fuit, an equitable jurifdiction to ftay proceedings, and to let a defendant in to try the merits bave jurif- of the original action upon reasonable terms, which jurisdiction diction of the cannot be exercifed, unless the original action, and the action upon the bail-bond be depending in the fame court. Upon hearing counsel on both fides, upon fhewing cause, the whole court were of opinion the proceedings in this cafe were illegal, and fet them afide; and would have given defendant his cofts, if cofts had been inferted in the rule to fhew caufe; fome of the judges feemed to think that this court had not jurisdiction of this caufe, the original action being in the King's Bench, and the action on the bail-bond being given by the act of parliament.

action.

2 Black. Rep. 838. S. C.

2 Black. Rep.

an agreement in writing,

Rule abfolute to fet afide proceedings.

Maft verfus Goodfon. C. B.

This record is entered of laft Trinity term, in the Rolls 366 3 367. in kac verba..

848. S. C. Suffolk THOMAS GOODSON, late of Worlington in the A count upon (to wit) county of Suffolk, yeoman, was attached to answer Thomas Maft of a plea of trefpafs upon the cafe, &c. that plaintiff And whereupon the faid Thomas Maft by Marcon Braham his atbould build torney complains, That whereas he the faid Thomas Maft, on the 27th day of Auguft in the year of our Lord 1762, was, and for divers (to wit feven) years before that time had been, and still is a trader, dealer and chapinan in divers and fundry kinds of goods, wares and merchandizes at Bury Saint Edmunds, in the faid

a yard in defendant's

clofe, and lay out not lefs

than 201. thereupon;

and that

plaintiff should enjoy it for his life; plaintiff avers that he did build the yard, &c. and enjoyed the fame for fome years as an easement, and affigns for breach that defendant wrongfully and injuriously obftructed him in the enjoyment of his laid easement.

county

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