1822. PAYNE

v.

. BAILEY.

to review his laxation, as to the costs of the original trial; and the rule thus qualified was accordingly made Absolute (a).

(a) See Tidd's Practice, 7th edit. 922-3, where all the cases on this subject are collected. And see Summers v. Formsby, 1 Barn. & Cress. 100.

Monday,

May 20th.

fendant, after final judgment, surrendered in discharge of his bail, and the plaintiff omitted to charge him in execu

Terms next

after such sur

MORRIS and another v. M'GRATH.

Where the de- MR. Serjeant Lawes, on a former day in this Term, had obtained a rule nisi that a writ of supersedeas might issue to discharge the defendant out of the custody of the Marshal of the King's Bench prison as to the plaintiff's suit in this cause, on the defendant's entering a comtion within two mon appearance; and that all the proceedings had and taken to charge the defendant in execution might be set render: Held, aside for irregularity, and that the plaintiff should pay persedable, al- to the defendant his costs occasioned by such proceedcaused himself ings, together with his costs occasioned by a writ of habeas corpus issued out on the part of the defendant to remove himself from the custody of the Warden of the Fleet to the King's Bench prison, as well as the costs of this application.

that he was su

though he had

to be removed by habeas corpus into the

custody of the Marshal ofK.B.

immediately on his being charged in execution.

1

He founded his motion on an affidavit, which stated, that final judgment was obtained in this cause in Easter Term 1821, that the defendant surrendered himself in discharge of his bail to the Warden of the Fleet on the 3d July following, being in Trinity Term in that year; on which day he served the then plaintiffs' attorney with a notice of render. That no further proceedings were taken by the plaintiffs against the defendant from that time until the last Hilary Term, when the defendant's attorney was served with an order that the

plaintiffs had caused their then attorney to be changed. That on the 11th February last a habeas corpus was lodged at the Marshal's of the King's Bench prison, to have the body of the defendant in this Court on the return day of the habeas, being the 12th February, and the last day of the last Hilary Term, when the defendant was charged in execution at the plaintiffs' suit. That in consequence of the defendant's having been so charged in execution, he was put to the expence of a habeas to remove himself from the custody of the Warden into that of the Marshal of the King's Bench, where he had the liberty of the rules.

Mr. Serjeant Vaughan now shewed cause; and contended, that although the defendant was entitled to be discharged under a supersedeus, as he was not charged in execution immediately after the last Michaelmas Term, yet, that not having applied for it during the ensuing vacation, nor during the whole of the following Hilary Term, he was not now in a situation to do so, through his own neglect. Although in Rose v. Christfield (a), it is laid down, that where a prisoner is once supersedable, he is always so, yet it must be understood with this qualification, that he is only supersedable so long as he remains in the same custody, and under the same process. Therefore, if a prisoner be supersedable for any irregularity, he cannot take advantage of it after he is charged in execution, supposing he has an opportunity of applying on that ground before he is so charged; and here it is quite clear that the defendant neglected to apply for a writ of supersedeas in due time. He also referred to the case of the London Assurance Company v. Perkins (b). Besides, here the defendant did not continue in the same custody, as he caused himself to be removed by habeas to

1822.

MORRIS

v.

M'GRATH.

1822.

MORRIS

บ.

M'GRATH.

the King's Bench prison immediately on his being charged in execution in this Court. The rule as to charging prisoners in execution differs in this Court from that of the King's Bench, as in the former (a) it is required that the plaintiff shall proceed to trial, or final judgment, within three Terms inclusive after declaration, and shall cause the defendant to be charged in execution within two Terms inclusive after such trial or judgment, of which the Term in or after which the trial was had is reckoned as one; but here no notice is taken of the trial, the rule Easter, 8 Geo. I. being, that the plaintiff shall proceed to judgment within three Terms inclusive after declaration, and charge the defendant in execution within two Terms inclusive after judgment against him. The distinction turns on whether a prisoner be supersedable for the want of proceedings before or after judgment; for in Line v. Lowe (b) it was held, that a defendant superseded for want of being charged in execution within two Terms after judgment, cannot be again arrested and taken in execution upon the same judgment; but that it was otherwise if he was superseded for want of proceedings in time before judgment. And the case of Clarke v. Venner (c) was there referred to, where it was held, that if the plaintiff had proceeded to judgment, and the defendant was discharged for the want of being charged in execution, he should be totally discharged, and could not after that be charged in execution. By the rule of Court Hilary 26 Geo. 3. if there be a trial against a prisoner, he is supersedable, unless charged in execution within two Terms afterwards; and in Heaton v. Wittaker (d) it was decided, that if there be final judgment against him without trial, (which is what is there meant by final judgment,) then he is supersedable, unless charg

(a) Hil. 26 Geo. 3.in C. P. 136.

(b) 7 East, 330.(d) 4 East, 349.

(c) Cooke's Cas. Prac.

ed in execution within two Terms after such final judgment, inclusive of the Term of trial or final judgment respectively. That case, however, turned on the distinction that final judgment in the terms of the rule of Court meant final judgment without a trial. Here it is quite clear that the defendant was at one time supersedable, but he then neglected to apply for a supersedeas, and he thereby lost all the benefit which he might have derived from it; but afterwards, when he was charged in execution, he caused himself to be removed by habeas to the King's Bench prison, for his own advantage and con

venience.

Mr. Serjeant Lawes, in support of the rule, observed, that it had been conceded to him that the defendant was once supersedable, but that although he was so, yet that he did not apply for his supersedeas in time; and that his causing himself to be removed into the custody of the Marshal was a waiver, although he had not been charged in execution in due time. In Rose v. Chrisfield, interlocutory judgment was merely signed, and the defendant having removed himself into the King's Bench, disputed the regularity of that judgment; and the Court there took a distinction as to cases of irregularity before or after final judgment. But the case of Heaton v. Whittaker is precisely in point, where the Court expressly held, that if there be a trial, the plaintiff must proceed to judgment, and charge the prisoner in execution within two Terms after such trial; and that if there were no trial, then within two Terms after final judgment, and that final judgment meant final judgment without a trial.

The Court being of opinion that that case was rightly decided, and that the present defendant had been irregu

1822.

MORRIS

v. McGRATH.

158

1822.

MORRIS

McGRATH.

larly charged in execution at the suit of the plaintiffs before he had caused himself to be removed by habeas into the custody of the Marshal, ordered the rule to be made

Absolute without costs (a).

(a) See Tidd's Practice, 7th edit. 366, 377. Impey's Practice, C. P. 6th edit. 644.

Monday, May 20th.

being in partnership with J. S., signed an agreement on behalf of both, to pay the plaintiff 1004, in consi

CALDER V. RUTHERFORD and Two others, Executors, &c.

Where G. S., THIS was an action of assumpsit brought against the defendants, as executors of James Stuart, deceased, who was the surviving partner of Gabriel Stuart, to recover the sum of 1007. stipulated to be paid by the latter, by an agreement contained in a letter, bearing date the 2d November, 1818, and addressed by him to the plaintiff, of which the following is a copy :

deration of his not consigning any herrings of a particular description to the London market, and in particular to the house of

year :-and the

"I agree to pay you 100/. in consideration of your not consigning, directly or indirectly, any quantity of reMessrs. M., for packed herrings to the London market, made up for the the space of one West India market; and in particular to the house of plaintiff declar- Messrs. J. and A. Miller. This agreement to be in force ed in assumpsit the for the space of one year from the date hereof; and against the exewhich I oblige myself to fulfil for the house of James and Gabriel Stuart, of London.

cutors of J. S.,

who had survived G. S., and averred that he had not consigned any herrings to the London market, and in particular to the house

The declaration contained several special counts; but

of Messrs. M. within the year; and in support of such averment, proved that he had not consigned any herrings to that house.-Held, sufficient to entitle him to recover, as it was incumbent on the defendants to shew that herrings had been consigned by the plaintiff to the London market. Held also, that the action was well brought against the executors of J. S., without describing him as the surviving partner of G. S. in the declaration.