the order. I am, therefore, of opinion that this rule must be discharged. BAYLEY J. I am of the same opinion. The word otherwise must be taken to be ejusdem generis, with the words, affected delay; and the word wilfully has the same meaning, in this instance, as wrong fully. Now I cannot say that a party who has revoked the submission, merely because she could not procure the attendance of material witnesses, has therefore wrongfully prevented the arbitrator from making his award. HOLROYD J. I am of the same opinion. I think that the fair meaning of the terms of this order are, that the Court should direct costs only in those cases where they have been incurred by the misconduct of the party sought to be charged with costs. Here the submission was revoked merely because the defendant could not obtain the attendance of witnesses whose attendance might be compelled in a court of law. I cannot, therefore, say that any costs were incurred by the misconduct of the defendant, or that she wilfully prevented the arbitrator from making his award by affected delay or otherwise within the meaning of this order. BEST J. concurred. Both Rules discharged. 1819. ASTON against GEORGE. 1819. Thursday, Feb. 11th. A rule for a special jury must be served sufficiently early to enable the opposite party to strike the jury before the day of trial, and therefore, where the rule was served at six o'clock on the evening preceding the day fixed for the trial, it was held, that the cause was properly tried by a common jury. GUNN against HONEYMAN. A RULE had been obtained to set aside the verdict in this cause for irregularity. On the 29th January, notice of trial had been served on the defendant's attorney, for the second sittings in this term, which were fixed for half past nine o'clock, in the morning of the 6th of February; on the 1st of February, the cause was entered in the Marshal's book; on the 4th, a rule for a special jury was obtained, and the Chief Justice's clerk then marked the cause in his book as a special jury. The rule for a special jury, with an appointment to nominate, was served on the plaintiff's attorney about six in the evening, on the 5th February, and on the 6th, the plaintiff tried the cause by a common jury. Barrow and Dehany now shewed cause, and contended, that in order to make the rule for a special jury a supersedeas to the common jury, it ought to have been obtained and served sufficiently early to enable the party to strike the jury, before the time appointed for the trial of the cause. Littledale, contrà, said, that in ordinary practice, it was sufficient to serve the rule for a special jury, the day before the adjournment day, and therefore, that by analogy in this case the service was sufficient. ABBOTT C. J. It is not necessary to lay down any precise rule, as to the number of days and hours that ought to intervene between the service of the rule and the time appointed for trial, in order to make the special special jury a supersedeas of the common jury process. It is sufficient to say here, that the rule should be served early enough to enable the other party, by using in the usual course of business ordinary diligence, to insure the attendance of a special jury. Here the rule was served so late, that it was impossible for the defendant to obtain the attendance of a special jury upon the day appointed for the trial. I therefore think that the rule should be discharged. BAYLEY J. I am of the same opinion. Common sense pronounces the rule to be, that the cause is to be tried by a common jury, unless it be put in a condition to be tried by a special jury; and that is not done unless the rule be served sufficiently early to enable the other party to strike the special jury; I am of opinion, therefore, that this rule should be discharged. HOLROYD and BEST JS., concurred. 1819. GUNN against HONEYMAN. VOL. II. Dd Rule discharged. 1819. attorney direct ed the sheriff's officer, who had fendant, not to let him go at express consent from him, the MARTIN against FRANCIS. The plaintiff's IN this case the defendant was arrested for 1401. The plaintiff's attorney had given directions to the arrested the de- sheriff's officer not to discharge the defendant under any authority from the plaintiff, without the consent of large without an the attorney, he stating that he had a lien for his costs. The officer promised that he would not discharge the defendant without such consent; notwithstanding which sheriff's officer he did discharge him by the authority of the plaintiff in the cause. A rule nisi had been obtained by Chitty, calling upon the sheriff to pay to the plaintiff's attorney 71. 10s., the costs of the action and also the costs of this application. attorney, as he had a lien for his costs. The did, by the authority of the plaintiff in the action, but without that of the attorney, Held that the sheriff was not liable to the costs. Holt now shewed cause. This is a novel application, attorney for his to compel the sheriff to pay the costs of the plaintiff's attorney, and if it succeed, the effect of it will be, to extend the lien of the attorney to the person of the defendant. The case of Withers v. Hensley (a), is however an authority to shew, that the sheriff was not only justified, but that he was actually bound to discharge the defendant at the command of the plaintiff; and if so, there is no pretence for this application. Chitty, contrà. In Welch v. Hole (b), Lord Mansfield said, that if an attorney gave notice to the defendant not to pay the debt till his bill should be discharged, the payment even by the defendant, after such notice, (a) Cro. Jac. 379. (b) 1 Dougl. 238, would would be a payment in his own wrong; and if a payment, even by the defendant himself, could not be supported, the attorney is not to be deprived of his lien by the defendant paying his debt; he ought not to be deprived of it by the act of the officer, in letting the defendant go at large without his consent. The sheriff is not liable to an action for false imprisonment until a supersedeas issues. Per Curiam. The effect of the argument is, that the sheriff is bound, upon the representation of the attorney, to detain the defendant in custody until he has the consent of the attorney to discharge him; so that even if the plaintiff had been paid the costs before he had consented to the discharge, the sheriff, according to the argument, would still be bound to detain the defendant. We are, however, of opinion, that the defendant cannot be detained if the plaintiff is satisfied. The liability of the sheriff in such cases ought not to depend upon the truth or falsehood of the.communication made to him by the attorney; nor ought the burden of inquiring into the fact, whether a lien exists or not, to be thrown upon the sheriff. Rule discharged with Costs. 1819. MARTIN against FRANCIS. WH REGULA GENERALIS. Hilary Term, 59 G. 3. HEREAS it appears, that the effect of so much of the rule of this court, of Hilary term 57 G. 3., as directs that the Master of the Crown Office do, from time to time, as well in vacation as in term-time, visit the the King's Bench prison, and do the several acts |