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The cases cited only shew, when the presumption of life ceases, even where there is no conflicting presumption. The facts of this case are, that there is a marriage of the pauper with Francis Burns, which is primâ facie valid, but the year before that took place, she was the 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. Cc 3

warranted

1819.

The KING against The Inhabitants of TWYNING, GLOUCESTER

SHIRE.

1819.

The KING against The Inhabit

ants of

TWYNING,

GLOUCESTER¬

SHIRE.

warranted in presuming the death of the first husband, on the ground that they would not presume that the woman had committed bigamy. I think, therefore, that their order was right.

Order of Sessions confirmed.

Monday,
Feb. 8th,

Defendant not entitled to an imparlance where he has

by his own act prevented plain

tiff from declar

ing within the term.

PAGE against VOGEL.

THIS action was brought by the plaintiff, as assignee of a bankrupt. The writ was returnable in last term, and special bail was perfected in time for the plaintiff to have declared as of that term; but on the very day that bail was so perfected, the defendant obtained a Judge's order for particulars of demand, with a stay of proceedings in the mean time. The defendant was examined before the commissioners of bankrupt, and admitted in his first examination, that he had books containing accounts of all his transactions with the bankrupt. The commissioners committed him to Newgate for prevarication. On his second examination, on the 7th December, he stated that he had also bills of parcels of every transaction which he had had with the bankrupt, and he promised to allow the assignees to inspect the same. On the following day, however, he went abroad, and although repeated applications had been made to the defendant's attorney, to allow the assignees to inspect the bills of parcels or books, he had always refused so to do. The bankrupt himself had absconded, and taken away all his books. It was sworn, that the plaintiffs would have declared as of last term, if the defendant had not obtained a Judge's order to stay proceedings, or if he had enabled them, by inspection of the books of account or

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.

1819.

PAGE

against VOGEL

1819.

Tuesday, Feb. 9th.

A plea of com

on debt on bail bond must be delivered.

ROWSELL against Cox.

peruit ad diem A RULE nisi had been obtained for setting aside the 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.

Tuesday,

Feb. 9th.

HENDERSON against Sansom.

A general plea IN this case, the action was commenced in June, the

of bankruptcy

must be deli

vered, and not filed.

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.

THIS

DEACON against MORRIS.

HIS was an action founded on the 29 Eliz. c. 4. which gives treble damages against sheriffs or other officers for taking more upon a levy of execution upon the plaintiff's goods than the fees allowed by that act. The Master, after a verdict had been obtained for the 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

costs.

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. (b)

1819.

Wednesday,
Feb. 10th.
In an action on

the 29 Eliz.
c. 4. plaintiff
is entitled to

treble costs as

well as treble damages.

(a) 7 Term Rep. 267.

(b) See Wilkinson v. Allot, Coup. 368.

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