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the capias for irregularity, and to cancel the bail-bond,―may be made absolute, as to cancelling the bail-bond, under the 1 & 2 Vict. c. 110, s. 6, although no grounds be laid before the court for setting aside the order, and although there be no irregularity in the capias.-On a motion to set aside a judge's order, the affidavits on which such order was obtained should be before the court.-Semble, that the proper mode to bring the affidavits before the court, is to give notice to the judge's clerk that they are required. Per Coltman J.

Shee Serjt., on a former day in this term (18th of April), had obtained a rule nisi, why an order in this cause made by Lord Denman C. J. at chambers, dated the 15th of March, for holding the defendant to bail, should not be set aside; why the writ of capias, issued in pursuance of the same, should not be set aside for irregularity; and why the bail-bond should not be given up to be cancelled; and why the plaintiff should not pay the costs.

The learned serjeant stated, upon obtaining the rule, that the case had been at chambers before Wightman J., who had referred it to the court. The facts were as follows:-Bristowe, the defendant, was the sole trustee of the marriage-settlement of Needham, the plaintiff (his brother-in-law); and had advanced him the trust-money without security. In order to recover it, Bristowe, had brought an action against Needham, which action was tried before Lord Abinger C. B. at the sittings after last Hilary term, when Bristowe recovered a verdict for 22,3501. Bristowe being indebted to Needham in 7501. for money lent, proposed, at the trial, to deduct this sum from the amount recovered in the action; but Lord Abinger thought that the verdict ought to be taken for the whole amount, and that Bristowe might enter a remittitur for the 7501. Needham, how-[263]-ever, was taken in execution for the whole amount, and was committed to the Fleet prison. In November last Needham obtained a judge's order to hold Bristowe to bail for the 7501., on the ground that he was about to leave England; which order was set aside at chambers on the 25th of November. In March last (after the trial of the action), Needham again obtained a judge's order to hold Bristowe to bail on the same ground; which order, on the 11th of March, was rescinded at chambers. On the 15th of March, Needham obtained a third order to hold Bristowe to bail as before. This was the one now sought to be set aside. Various letters were referred to, as having been before Wightman J. at chambers; and it was distinctly sworn that Bristowe had no intention of leaving England. In the indorsement on the capias, which was issued by Needham in person, Needham described himself as "of the Fleet prison in the parish of St. Bride in the city of London," which description was the irregularity complained of.

Bompas Serjt. and Channel Serjt. now shewed cause. There is no irregularity in the capias. It is necessary, in following the form of the indorsement given in the act (a), that the residence of the plaintiff should be stated, when the writ is issued by him in person, and that regulation has been complied with in this case; for, when a party is in prison, the prison is, to all intents and purposes, his residence. [Tindal C. J. The statement would certainly be sufficient in an affidavit (b); and I think it is so in this case.]

Then there is nothing further to argue, as no other [264] irregularity in the proceedings is complained of, and it is not necessary to go into the merits. [Cresswell J. Suppose nothing had been said about irregularity in the rule, it would have been competent, to the other party to set aside the order upon the merits. Will the fact of his having inserted the word "irregularity" prevent his doing so? Erskine J. Besides, the rule to set aside the order and cancel the bail-bond is not for irregularity.] There is still, however, a preliminary objection. The rule is drawn up-on reading the order and the affidavits upon which the rule nisi was obtained; but it is necessary that the court should also see the affidavits upon which that order was made, and these the defendant has not set out. In Cooper v. Folkes (ante, vol. i. 942), this court held, that on a motion to discharge a rule obtained for a distringas to compel an appearance, the

(a) 1 & 2 Vict. c. 110, Sched. When the writ is issued by the plaintiff in person, it is necessary to "mention the city, town, or parish, and also the name of the hamlet street, and number of the house of the plaintiff's residence, if any such there be."

(b) And see 6 & 7 Vict. c. 18, Sched. B. No. 3, 4, 6, 8, as to the notices and forms directed to be used with respect to lists of voters.

affidavits on which such rule was granted, must be brought before the court. [Tindal C. J. In that case were the affidavits in court?] That does not appear from the report; the rule had been drawn up, as in this case, upon reading the rule for the distringas, and the affidavits upon which the rule nisi to set it aside had been obtained; but the affidavits upon which the distringas was obtained must have been filed in the court. [Tindal C. J. It certainly does seem rather a strange thing to require a party to be at the expense of obtaining copies of the affidavits upon which a judge's order was obtained.] The affidavits in this case are at the judge's chambers, and the court has no means of ascertaining their contents. [Tindal C. J. (after referring to the master). They will be brought into court to-day. Cresswell J. There may be this distinction, that if a party seeks to shew that a judge's order was improperly made, he must produce to the court the affidavits upon which it was obtained; but if he seeks to relieve himself from the effects of the order, he may admit that it [265] was properly made in the first instance. Tindal C. J. It may be, that the defendant seeks to set aside the order for something ex post facto. Shee Serjt. stated that he had mentioned the affidavits to the court at the time he obtained the rule, and believed he had handed in office-copies; but he understood it was not the practice, in the master's office, on drawing up a rule, to notice office-copies of affidavits. Tindal C. J. It could not be drawn up on reading the originalaffidavits, as they are not in the custody of the party who obtains the rule. But although the defendant in this case may not be in a condition to set aside the order, he may be entitled to insist on his discharge under the sixth section of the imprisonment for debt act (a). The proper form of the rule in that case would be, to call on the plaintiff to shew cause, why the defendant should not be discharged out of custody, or why the bail-bond should not be delivered up to be cancelled; but we can decide that now.] The present rule has three objects; first, to set aside the order; secondly, to set aside the capias; and, thirdly, to cancel the bail-bond. The court has decided that the second of these cannot be entertained, as the capias is not irregular; if they now decide that the order cannot be gone into, there will be no ground for cancelling the bail-bond. [Tindal C. J. The latter point is still open to argument, under the sixth section of the act referred to, without impeaching the order.] The only authority the court has, under that section, is to discharge the defendant out of custody; but there is no such application in this case. [Tindal C. J. [266] I think the present rule may be made absolute as to cancelling the bail-bond.]

Shee Serjt. applied for the costs.

TINDAL Č. J. I think the defendant is not entitled to the costs, as he has asked for too much. He is seeking to set aside the judge's order; and he has not brought before the court the materials upon which that can be done.

COLTMAN J. It seems to me that the proper course in such a case would be, to give notice to the judge's clerk that the affidavits were required; and then he would send them into court.

Per Curiam (Shee Serjt. consenting).

Rule absolute to deliver up the bail-bond to

be cancelled; the costs to be costs in the cause.

JONES v. ELDRIDGE. May 9, 1842.

An affidavit to ground a motion to set aside a writ of summons commanding C. E. (whose real name is C. D. E.) to answer A. B., was held to be properly entitled, “A. B. v. C. D. E., sued as C. E.”

Bompas Serjt. had obtained a rule nisi to set aside the copy of the writ of summons in this case, and the service thereof, for irregularity, by reason of the omission of the

(a) 1 & 2 Vict. c. 110, s. 6, enacts, "That it shall be lawful for any person arrested upon any such writ of capias, to apply at any time after such arrest, to a judge of one of the superior courts at Westminster, or to the court in which the action shall have been commenced, for an order or rule on the plaintiff in such action, to shew cause, why the person arrested should not be discharged out of custody; and that it shall be lawful for such judge or court to make absolute or discharge such order or rule."

memorandum at the foot of the copy, as to the time during which the writ might be served.

Channel Serjt. now shewed cause, and took a preliminary objection that the affidavit upon which the rule was obtained was wrongly intitled. The writ was addressed to John Elridge; and the affidavit was headed Jones v. John Adams Eldridge, sued as John Elridge. He contended the affidavit should have followed the writ, [267] and relied upon Borthwick v. Ravenscroft (5 M. & W. 31, 7 Dowl. P. C. 393); where, in a motion to set aside a distringas, the affidavits intitled "Borthwick v. Henry William Ravenscroft, sued as Henry Ravenscroft," were held incorrect; as not being in conformity with the notice subscribed to the writ of distringas, which wasentitled "Between John Borthwick, Plaintiff, and Henry Ravenscroft, Defendant.' He also cited Shrimpton v. Carter (3 Dowl. P. C. 648); where, in an action by Geo. Shrimpton v. Wm. Carter, an affidavit intitled Geo. Shrimpton v. Wm. Carter the Elder, sued as Wm. Carter, was rejected as being improperly entitled.

Bompas Serjt., in support of the rule, contended, that since the new rules, a defendant must appear in his right name, as he cannot plead misnomer in abatement. He relied upon Finch v. Cocker (2 Dowl. P. C. 383, 2 C. & M. 412. S. C., not S. P. 2 C. M. & R. 196, 3 Dowl. P. C. 678); where, a rule having been obtained for setting aside a bail-bond, on the ground of a variance in stating the defendant's name as Cocker instead of Cocken. The affidavit on which the rule was obtained being entitled "Finch v. Cocker," it was insisted that it ought to have been intitled "Finch v. Cocken, sued by the Name of Cocker," and the affidavit was held to be improperly intitled.

TINDAL C. J. I do not think that this affidavit is improperly intitled. The heading amounts, in effect, to the defendant's saying, "the plaintiff has sued me, John Adams Eldridge, by the name of John Elridge." The decisions that have been cited are contradictory; but I cannot distinguish this case from Finch v. Cocker, which has been relied on by my brother Bompas. Borthwick v. Ravenscroft certainly decides the contrary. [268] In this conflict of authority the best way appears to be to decide in conformity with the case which is most consistent with good sense; and that case, I think, is Finch v. Cocker.

The other judges concurring, and Channell Serjt. not arguing the point as to irregularity

Rule absolute (a).

[269] JOHN BARTLETT, THE ELDER, v. JOHN BARTLETT, THE YOUNGER.
SAME v. SYMONS. SAME v. LYNE. May 9, 1842.

The assignee of a replevin bond having brought actions severally against the principal and his two sureties, the court made a rule, that the proceedings in all the actions should be stayed upon payment of the rent due and costs; and that upon such payment not being made, the first action should be proceeded with, the defendants in the other two actions to be bound by the event of the first.

These were three actions upon one replevin-bond, brought by the assignee of the sheriff of Devon, against the principal, and each of the two sureties.

The distress was taken, and the replevin-bond executed, on the 18th of January

(a) In Swift v. Wright, 7 Dowl. P. C. 863, it is said that, the defendant was described in the writ of summons as "Charles Wright," but in the distringas as "Charles James Jonathan Wright, sued as Charles Wright;" and that the latter process was held to be irregular, as varying from the writ of summons.

The same case is reported (nom. Swift v. Knight), in 5 M. & W. 618, where it is said, that the defendant was described as "Charles Knight" in the distringas, and that he was described in the writ of summons and the plaintiff's affidavits, as "Charles James Jonathan Knight, sued as Charles Knight."

Upon inquiry at the rule office, it appears that, in the writ of summons, the plaintiff is described as "Charles Knight;" in the distringas as "Charles Jonathan Knight, sued as Charles Knight;" that the defendant's affidavits are intitled "Charles Jonathan Knight, sued as Charles Knight;" and that the plaintiff's affidavits are intitled "Charles James Jonathan Knight," that being the true name.

last. On the 25th a plaint was entered by Bartlett the younger, in the county court; and on the 31st an appearance was entered for Bartlett, the elder, as of the preceding 25th. Another court was held on the 22d of February, but negotiations being pending between the parties, no step was then taken by Bartlett, the younger. On the part of Bartlett the elder, it was, however, insisted that there had been a default, and that the replevin-bond was forfeited; and on the 7th of March he obtained an assignment thereof from the sheriff. The writs in the three actions thereon were issued on the 14th. On the 22d a declaration in the replevin suit was filed, and a rule to avow given.

There was a dispute between the parties as to the amount of rent in arrear, but Bartlett, the younger had tendered the sum which he alleged was actually due.

Appearances had been entered in the actions on the replevin-bond on the 30th of March.

A summons had been obtained before a judge at chambers to stay the proceedings in these actions without costs, or on payment of the costs in the first action only. This was heard before Maule J. when a preliminary objection was taken on behalf of the plaintiff in this [270] court, that the application was too late; as it was to set aside the proceedings for irregularity, and therefore fell within the thirty-third rule of H. 2 W. 4; and that the defendants, by entering appearances, had waived the irregularity. His lordship expressed an opinion that the application was not in the nature of an application on the ground of irregularity, and therefore not within the rule; but he decided he had no jurisdiction to entertain the question, except by consent, which was refused on behalf of the plaintiff.

Channell Serjt., on a former day in this term (April 30th), upon affidavits of the above facts, had obtained a rule nisi to stay all proceedings in the three actions, on payment of the costs in the first mentioned action only, or upon such other terms as the court should direct. He referred to Key v. Hill (2 B. & Ald. 598); 4 Ann. c. 16, s. 20 (c), R. G. H. 2 W. 4, r. 30 (d), and 11 G. 2, c. 19, s. 23 (e).

Bompas Serjt. now shewed cause.

[271] Channell Serjt. was heard in reply.

The court ultimately pronounced a rule, that all proceedings in the three actions should be stayed on payment of the rent and costs: otherwise, the rule to be discharged, and the plaintiff to proceed in one action, and the defendants in the other two actions to be bound by the event of that one (a).

COTTAM AND ANOTHER v. PARTRIDGE. May 7, 1842.

[S. C. 4 Scott, N. R. 819; 11 L. J. C. P. 161. Discussed, Tatam v. Williams, 1844, 3 Hare, 357; Friend v. Young, [1897] 2 Ch. 430.]

An open account between two tradesmen for goods sold by each to the other, without any agreement that the goods delivered on the one side shall be considered as

(c) By which it is enacted, that "if the said bail-bond or assignment, or other security taken for bail, be forfeited, the plaintiff in such action, after assignment made, may bring an action and suit thereupon in his own name; and the court where the action is brought may, by rule or rules of the same court, give such relief to the plaintiff and defendant in the original action, and to the bail, upon the said bond or other security taken from such bail, as is agreeable to justice and reason; and that such rule or rules of the said court shall have the nature and effect of a defeazance to such bail-bond or other security for bail."

(d) The effect of which is, that proceedings in several actions on the bail bond may be stayed upon payment of costs in one action, unless sufficient reason be shewn by the plaintiff why he should be allowed to proceed in more.

(e) By which it is enacted, that "if the bond so taken and assigned, be forfeited, the avowant, or person making cognizance, may bring an action and recover thereupon in his own name; and the court where such action shall be brought may, by a rule of the same court, give such relief to the parties upon such bond as may be agreeable to justice and reason; and such rule shall have the nature and effect of a defeazance to such bond."

(a) Upon application at the master's office it has been ascertained that the rule was never drawn up.

payment for those delivered on the other, does not constitute such an "account as concerns the trade of merchandise between merchant and merchant" within the exception of the statute of limitations (21 J. 1, c. 16, s. 3).-Since Lord Tenterden's act (9 G. 4, c. 14, s. 1), the existence of items, within six years, in an open account, will not operate to take the previous portion of the account out of the statute of limitations.

Assumpsit for goods sold and delivered, and upon an account stated.

Pleas: first, except as to 31. 8s., parcel, &c., non-assumpsit. Secondly, except as to the said sum of 31. 8s., parcel, &c., the statute of limitations. Thirdly, except as to the said sum of 31. 8s., parcel, &c., a set-off for goods sold and delivered, money lent, had and received, and due upon an account stated. Fourthly, payment into court of 31. 8s., and no damages ultrà.

The replication joined issue on the first plea.

To the second plea, so far as the same related to the sum of 31. 9s. 3d., parcel of the moneys in the first count mentioned, and also so far as the said plea related to the last count, the plaintiffs replied that they ought not to be barred from having their aforesaid action thereof [272] against the defendant, because they said that the said cause of action in the said first count mentioned as to the said sum of 31. 9s. 3d., and the said cause of action in the said last count mentioned, and each of them, did accrue to the plaintiffs within six years next before the commencement of the suit, modo et formâ; concluding to the country. Whereupon issue was joined.

And as to the said second plea, so far as the same related to the residue of the said causes of action in the declaration mentioned,-that the said residue of the said causes of action were and are, and relate to, certain accounts still open and unsettled, concerning the trade of merchandise between merchant and merchant, that is to say, between the plaintiffs and defendant, as merchants; and that the plaintiffs and the defendant were merchants during the time the said account and matters arose and were subsisting between them. Verification; and prayer of judgment, and of damages on occasion of the non-performance of the promises in the declaration mentioned, as to the said residue of the said causes of action.

As to the third plea, so far as the same related to the sum of 31. 12s. 0дd., parcel of the moneys in the said third plea mentioned, and not excepted thereby,-that the plaintiffs were not nor are indebted to the defendant as in that plea alleged; concluding to the country. Whereupon issue was joined.

And, as to the said third plea, so far the same related to the residue of the matters of set-off in the said third plea mentioned, and not thereby excepted, -the statute of limitations.

And, as to the last plea, the plaintiffs took out of court the said sum of 31. 8s., in full satisfaction and discharge, &c.

Rejoinder. As to the replication to the second plea, so far as the same related to the said residue of the causes of [273] action in the declaration mentioned, that the said residue of the said causes of action were not nor are, nor was nor is either or any of them, nor did they or any or either of them, relate to accounts still open and unsettled concerning the trade of merchandize between merchant and merchant, nor were the plaintiffs and defendant merchants, modo et formâ; concluding to the country. Whereupon issue was joined.

And, as to the replication to the third plea, so far as the same related to the said residue of the said causes of set-off in that plea mentioned, that the said residue of the said causes of set-off were and are, and related to, certain accounts still open and unsettled concerning the trade of merchandize between merchant and merchant, that is to say, between the plaintiffs and defendants as merchant, and that the plaintiffs and the defendant were merchants during the time that the said accounts and matters arose and were subsisting between them. Verification.

Surrejoinder. As to the rejoinder to the replication to the third plea, so far as the same related to the said residue of the said causes of set-off in that plea mentioned, that the said residue of the said causes of set-off, were not nor are, nor did they relate to, accounts still open and unsettled concerning the trade of merchandize between merchant and merchant, that is to say, between the plaintiffs and the defendant as merchants, modo et formâ; concluding to the country. Whereupon issue was joined. The cause was originally tried before Tindal C. J. at the London sittings after

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