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The cases cited only shew, when the presumption of 1819. life ceases, even where there is no conflicting presump
The KING tion. The facts of this case are, that there is a marriage
The Inhabita of the pauper with Francis Burns, which is primâ facie ants of
TWYNING, valid, but the year before that took place, she was the GO wife of Richard Winter, and if he was alive at the time of the second marriage, it was illegal, and she was guilty of bigamy. But are we to presume that Winter was then alive? If the pauper had been indicted for bigamy, it would clearly not be sufficient. In that case Winter must have been proved to have been alive at the time of the second marriage. It is contended that his death ought to have been proved, but the answer is, that the presumption of law is, that he was not alive . when the consequence of his being so is, that another person has committed a criminal act. I think, therefore, that the sessions decided right in holding the second marriage to have been valid, unless proof had been given that the first husband was alive at the time.
Best J. (a) I am also of opinion that the sessions have decided correctly in this case. They had a right to presume that the pauper had not committed a crime, and if so, the second marriage would be valid, unless proof had been given of the first husband being then alive. The cases cited are very distinguishable, they only decide that seven years after a person has been last heard of, you are in all cases to presume his death. But they do not shew, that where conflicting presumptions exist, you may not presume the death at an earlier period. Now, those conflicting presumptions exist here, and I think the sessions were
(a) Holroyd J. had left the Court.
against The Inhabita
ants of TWYNING, GLOUCESTER
warranted in presuming the death of the first husband,
Order of Sessions confirmed.
PAGE against VOGEL.
THIS action was brought by the plaintiff, as assignee entitled to an imparlance
of a bankrupt. The writ was returnable in last where he has by his own act term, and special bail was perfected in time for the prevented plaintiff from declar: plaintiff to have declared as of that term; but on the ing within the
very day that bail was so perfected, the defendant obterm,
tained a Judge's order for particulars of demand, with a
On the following day, however, he went abroad,
Page against VOGEL
bills of parcels, to furnish the particulars of demand. The bankrupt returned only on the day before this term; and on the 3d February, a declaration and particulars of demand were delivered, and on the 9th, judgment was signed, as for want of a plea. A rule nisi having been obtained by F. Pollock to set aside this judgment for irregularity, on the ground that the defendant was entitled to an imparlance.
Curwood now shewed cause, and contended, that the defendant himself had been the cause of the delay, and therefore was not entitled to an imparlance.
Per Curiam. The ground upon which a defendant is entitled to an imparlance, is, that the plaintiff has taken time; and therefore that the defendant ought also to have time. We will not here lay down any general rule that the defendant is entitled to an imparlance in every case where the plaintiff has been delayed in declaring by the defendant's obtaining a Judge's order for particulars; here, however, it is perfectly clear that the delay has been occasioned by the defendant's own act; and it might as well be contended that he would be entitled to an imparlance if he had obtained an injunction, and so prevented the plaintiff from declaring. The defendant, however, producing an affidavit of merits, the Court set aside the judgment on payment of costs.
Rule absolute on these terms.
A plea of comperuit ad diem on debt on bail bond must be delivered.
judgment for irregularity. It was an action of debt on a bail bond. A plea of comperuit ad diem had been filed within the time allowed by the rule for pleading, but was not delivered, and judgment was signed for want of a plea.
The Court held that such a plea ought to have been delivered, and not filed.
A general plea of bankruptcy must be deli vered, and not filed.
IN this case, the action was commenced in June, the
declaration was filed in December, to plead within the first four days of Hilary term. The defendant, within that time, filed a general plea of bankruptcy, and the plaintiff afterwards signed judgment as for want of a plea. It was urged in this case that in Tidd's Practice it was stated only that such a plea may be delivered.
The Court, however, after consulting with the Master, said that by the practice of the Court such a plea must be delivered.
1819. Deacon against Morris.
Wednesday, THIS HIS was an action founded on the 29 Eliz. c. 4. Feb. 1oth.
In an action on which gives treble damages against sheriffs or other the 29 Eliz.
c. 4. plaintiff officers for taking more upon a levy of execution upon is entitled to
treble costs as the plaintiff's goods than the fees allowed by that act. well as treble The Master, after a verdict had been obtained for the damages. plaintiff, had only taxed single costs; and
Marryat having obtained a rule nisi for the Master to review his taxation, on the ground that as the statute expressly gave treble damages, it must be intended by implication that the plaintiff was also entitled to treble
Chitty now shewed cause. In Tyte v. Glode (a), it was doubted whether any costs at all were recoverable under this statute; at all events, however, as nothing is expressly said in the act about costs, the plaintiff can be entitled only to such costs as he would have in other cases, viz. single costs.
Per Curiam. Where an act of parliament gives treble damages for a cause of action, for which at common law a party would only be entitled to single damages, treble costs follow as of course. In ordinary cases the party recovers damages, being so much for the damages by him sustained, and so much for his costs; the costs, therefore, are part of the damages, and consequently the act of parliament, by giving treble damages, impliedly gives treble costs.
Rule absolute. (6)
(a) 7 Term Rep. 267.
(6) See Wilkinson V. Allot, Cowp. 368.