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ARGUED AND ADJUDGED
Court of Mngs Bencj),
DURING THE TIME
LORD MANSFIELD PRESIDED IN THAT COURT.
Michaelmas Term, 30 Geo. II. 1756, to Easter Term
IN FIVE VOLUMES.
By SIR JAMES BURROW, Knight,
LATE MASTER OF THE CROWN-OFFICE, AND ONE OF
THE BENCHERS OF THE HONOURABLE SOCIETY
OF THE INNER TEMPLE.
THE THIRD EDITION,
WITH TIM ADDITION OF CRITICAL NOTES AND OBSERVATION-!, AND
From Easttr Term, 10 Geo. III. 1770, to
Fnmtkd FOB W. CLARKE AND SONS, AND J. BlJTTERWORTH.
10 GEO. 3. B.R. 1770.
Memorandum-r- During' the last Vacation, several Alterations happened on the Bench, and at the Bar.
MR. Justice Cmve resigned his judgeship of the
Mr. Blackstone, Solicitor General to the Queen,
Mr. Ambler, one of his Majesty's counsel learned in the law, succeeded Sir William Blackstone, as Solicitor General to the Queen.
Mr. Hussey, having (towards the end of last term) resigned his offices of Attorney General to the Queen, counsel to the Admiralty, and auditor of Greenwich Hospital; he was succeeded in the first by John Morton, Esq.; of the Inner-Temple, Chief Justice of Chester; in the second, by Francis Cust, Esq.; of the Middle-Temple, brother to the late Speaker of the House of Commons: and in the third, by Edward Thurlow, Esq.; of the Inner'Temple, one of his Majesty's counsel learned in the law.
And Richard Jackson, Esq.; of the Inner-Temple^ was appointed one of his Majesty's counsel learned in the law, and counsel to the Board of Trade, which had been vacant from the death of Sir Matthew Lamb to this time.
Mr. Thurlow was also appointed his Majesty's Solicitor General, in the room of Mr. Dunning, who resigned that office.
Vol. V. B
ItiO. ]yjr I)UNNiNG? iafe Solicitor General, appeared on
the outside of the bar, in the common ordinary bargown. Wednesday, Lord Mansfield, after Mr. Dunning bad made his
id May i7?o. first motion, addressed himself to him, and declared, that o'fuy TMr Day\ m consideration of the office he had holden, and his high "" rank in business, he intended for the future, (and thought he should thereby injure no gentleman at (he bar,) to call to him next after the King's counsel and Serjeants, and Recorder of London.
Mr. Caldecott and Mr. Coxe, the two senior utterbarristers present, very readily assented to it; and said they had thought of proposing the same thing themselves.
Monday nh Hart, Assignee of the Sheriff of Cornwall, versus Wes
May 1770. _ r T Ij
J Ton, Lsq.; Idem versus Hingeston.
(S. C. 2B1. 683.)
Matterofform r|1WIS was an action of debt upon a bail-bond, brought cannot be by the plaintiff as assignee of the Sheriff of Him
taken advan- wall. The plaintiff declared that after the first d.iy of laJEr!dteZ* Trinity Tern 1706, vit. on the 23d day of February rer, but should 1769, the plaintiff prosecuted out of the Court of our be ansignad Lord the King before the King himself at Westminster, as termed. a writ of jatitat directed to the Sheriff of Cornwall,- and so proceeded, and set out the writ, the delivery of it to the Sheriff, the warrant, the arrest, the giving the bailbond by the defendants, and the assignment of it to the plaintiff. The defendant pleaded '< Nil debet" the plaintiff demurred to his plea.
Mr. Mansfield, on behalf of the defendants, objected to this writ, it being stated by the declaration to have been sued out of this Court, then sitting, on the 23d of February ,• which is impossible-: for, the Court could not sit out of term.
He cited the case of Estwick, assignee of the Sheriff of Middlesex, v. Cooke, in 2 Ld. Raym. 1557, and Fitz. Gib. 66. S. C. which he said was precisely in point. That was (as this is,) an action of debt upon a bailbond; the plaintiff declared with a videlicet "on the 18th of July," which was after Trinity Term: and it was agreed to be bad.
Mr. Ash Hurst, on behalf of the plaintiff, said, this objection being matter of form, it cannot be taken advantage of upon a general demurrer: it ought to have been assigned as cause, upon a special demurrer.
1770 Besides, it is only an irregularity: it might have been MW'
tCaved by an appearance.
Therefore the bail shall not take advantage of it. Hart
By the practice of the Court, a writ may be sued out V
in vacation; though it must bear teste within the term. Weston.
In the case of * Johnson and another, Assignees v. • y. ante Smith, widow, a latitat issued in vacation: and it was »ol. 2. p. 950. holden "that the teste of a latitat is not conclusive as to "the time of suing it out:" and here it is alledged as a fact, " that the writ did issue in the vacation."
He disputed the case in 2 Ld. Rayjn. and Fits. Gibbon, and observed that the time of 6uing it out appeared only under a videlicet.
Mr. Mansfield alledged that case to be directly in point.
This writ issuing in vacation, and described and set forth a* tested in vacation, is void; and consequently, all that followed upon it. It must be taken to issue, when it was tested; unless something in particular is introduced into the record.
Lord Mansfield—We'll look into the case in [See £ Dora. Loud Raymond. It was then the prevailing opinion, '*• 3 Durn. ." that it could not be averred that the writ issued on a 184'J ." day different from the teste of it."
His Lordship now declared the opinion of the Court; having first stated the pleadings and the case of Estwick v. Cooke, cited by Mr. Mansfield. He then proceeded as follows—
We were inclined to over-rule that case, if the present case had been more like it, than it is.
But the present case does npt say when the writ bears date: it does not mention the teste of it at all.
The case cited had these further words—" eddem Cu- L 2588 j 11 ria apud Weslmonasterium" adtunc tentd existente." The defendant demurred to the declaration; and it was held ill; because it was not according to the truth of the fact: for, it could not, on the 18th of July, be sued out of the Court of King's Bench then sitting at Westminster. This is the ground of the opinion Of the Court.
Mr. Reeve, who was counsel for the plaintiff in that case, cited a strong case * to prove "that a writ may * WaOmrgh v. "be sued out in vacation-time." But the Court took it rHi^ul" "up, and said that the writ could not be sued out of the 1 Vmtr. S62! "Court of King's Bench then sitting at Westminster, v- <">lt> TMl- * "when the Court did not, nor could sit out of term." p"96*'
The present case does not say a word about the teste: it only alleriges " that the plaintiff prosecuted the writ "on the 23d of February." And the truth of the fact