1804. COOPER versus HUNCHIN. out in order to charge them, or another person, in that new situation." RULE DISCHARGED. In re In the Matter of Sir EDWARD PRICE, Bart.-Feb. 11. Habeas Corpus granted to bring up a prisoner, confined for non-pay ment of a fine to the King, and also for debt, in order to give evidence before a committee of the House of Commons, he being summoned for that purpose by the Speaker's warrant. The rule in such case must be served on the person who would be liable for an escape, and also on the persons who might proceed against him in case of an escape. WETHERELL moved for an Habeas Corpus, directed to the keeper of the gaol of Ilchester, to bring up Sir Edward Price, Bart. in order to be a witness upon a petition to parliament concerning the last Ilchester election, which was then pending before a committee of the House of Commons, and on which the Speaker had issued his warrant for his attendance. This, it was suggested, was not a sufficient authority for the gaoler, and he might be liable to an action for an escape. The present application, therefore, was made for his security; and WETHEFELL mentioned that in the last Coventry election case, an application was made to a Judge, at Chambers, to bring up one Bryant, a prisoner in the King's Bench, he having refused to come upon the Speaker's warrant: and that, in a case of contempt before the House of Lords, it had been also necessary to resort to this process. LAWRENCE, J. observed that there was a late act of parliament, 43 Geo. III. c. 141,* which specially authorized the Court to issue writs of Habeas Corpus to • Vide LAW JOURNAL Acts of Parliament, vol. iii. p. 3. In re bring witnesses before courts martial, &c. and there was some doubt about granting the rule; but at length a rule PRICE, Bart. Nisi was granted, which THE COURT said should be served upon the Attorney. General, and also upon the person who would be liable in case of an escape, and that notice should be given to all persons who had lodged detainers for debt against the prisoner, he being originally confined for not paying a fine due to the King. Afterwards, upon an affidavit of the service of notice on Sir Edward Price, the gaoler, the solicitor for the treasury, and one Robert Roberts, the agent and attorney of Thomas King, the only person at whose suit he was then in execution, he being supersedable in other actions; THE COURT made the rule absolute, and ordered that Webb, the petitioner before the House of Commons, should pay all the expences of bringing him up, &c. LEWIN versus SMITH. Affidavit of debt against two defendants for a joint and separate debt ; latitat against both; declaration against one only: Held irregular, and the declaration and subsequent proceedings set aside. THE plaintiff made an affidavit of debt against the de fendant and another, on their joint and separate promissory note, stating them jointly and separately indebted. He then sued out one latitat with an ac etiam against them jointly, but arrested only the defendant, Smith, and afterwards declared against him separately. BEST moved to set aside the proceedings for irregularity with costs, and cited Holland v. Johnson, and Gilbey 4 Term Rep. 695. LEWIN versus SMITH. 1804. LEWIN versus SMITH. * v. Lockyer. He therefore relied upon the affidavit, and the ac etiam, as shewing an intention to proceed against both, and said that it would be the means of com.mitting fraud upon the revenue, for if this one defendant could be proceeded against separately on this affidavit, so might the other also. GASELEE, on the other side, said, that there was no case to shew that the proceedings are irregular when there is one affidavit, but the cause of action being the same against both parties, the plaintiff, in mercy, drops the proceedings against one of them. But THE COURT thought this case decided by the former, and made the rule absolute to set aside the declaration, and the subsequent proceedings; but they would not give costs, because the rule prayed too much: namely, that the writ should be set aside also, which was regular. RULE ABSOLUTE, PRO TANTO. The KING versus the SHERIFF of MIDDLESEX. Where a writ is delivered to the late sheriff, and executed by him, and the return to the writ happens in the time of a new sheriff, the new sheriff must return it with the late sheriff's return indorsed thereon, in order to the Court's, proceeding to enforce obedience to the writ; but if the new sheriff return cepi corpus by mistake, and an attachment afterwards issue against the late sheriff for not bringing in the body, this is irregular, as the Court can only lock to him who made the return. But where the rule to bring in the body was had the 12th of November, and no objection made to the attachment till the 27th of Ja nuary following, it was held that the party came too late. THE KING RULE to set aside an attachment, &c. issued against the late sheriff of Middlesex, for not bringing in the The Sheriff of. MIDDLLSEX. * Doug. 207. 1804. The Sheriff of body of the defendant, for irregularity. The late sheriff had arrested the defendant, and he going out of office before the return of the writ, the present sheriff returned cepi corpus, the late sheriff having been ruled for that purpose: MIDDLESEX. and upon the late sheriff being ruled to bring in the body, and failing, an attachment issued against him. HULLOCK, in support of the present rule, contended, that it was irregular, for the Court could only look to the sheriff in whose time the return to the writ happened; and for this purpose cited the rule of court, Trinity, 31 Geo. III. whereby it is ordered that where any sheriff, before his going out of office shall arrest any defendant, and a cepi corpus shall afterwards be returned, he shall and may be called upon within the time allowed by law to bring in the body, notwithstanding he may be out of office before such rule shall be granted." Yet he contended that this did not apply to a writ returnable after the late sheriff quits his office. And he stated the practice that the late sheriff assigns all prisoners to the new sheriff by indenture upon his coming into office. ERSKINE and WIGLEY, contrà, relied upon the above rule of court as warranting the attachment. Lord ELLEN BOROUGH, and LAWRENCE, J. asked them, however, if they could shew any case in which the late sheriff is attached for not making a return to a writ which ought to be returned by the present sheriff, and afterwards, the case standing over till the end of the term, 54. Lord ELLENBOROUGH, C. J. delivered the opinion of the Court, and after referring to several authorities, viz. Cro. Eliz. $65. Hob. 266. 1 Bulstr. 70. 9. 2 Leon. 2 Roll's Ab. 457. Dalt. 516. 1 Bulstr. 72. 3 Co. Rep. 72. Westby's case. Styles' Practical Register, 587; and also the above rule of Court; concluded, that from the whole view of the practice, the present sheriff ought to have returned the writ with the old sheriff's 1 1804. return thereon, and so stated what was done by the old THE KING sheriff; but that now the party comes too late, the rule The Sheriff of to bring in the body having been granted on the 12th of MIDDLESEX. November, 1803, and no notice taken of the irregularity versus till the 27th of January, 1804. Although, therefore, the attachment against the old sheriff was irregular, the RULE WAS DISCHARGED. PEARSON PEARSON versus REYNOLDS, Gent. one, &c. It is not necessary to demand a plea where the defendant has taken out a summons for time to plead. BARROW moved to aside proceedings for irregularity REYNOLDS. in signing judgment without a demand of plea. versus ESPINASSE, contrà, cited Towers v. Powell, 1 H. Blac. 87, and Starkey v. Wilkes, Sellon's Practice, 347, to shew that it was not necessary to give a demand of plea where there has been a summons for time to plead, and time given, as was sworn in this case. Lord ELLENBOROUGH, C. J. "A demand of plea is unnecessary, and the practice of dispensing with it is reasonable in this case, for it can only be required where it may be presumed that the defendant may not have had notice; but the circumstance of the defendant having taken out a summons for time to plead excludes such a conclusion. As it was objected that the cases cited in support of this practice all occurred in the Common Pleas, the Master handed up to the Court a note of a case which occurred in this court upon the same point." RULE DISCHARGED. |
