rested for the sum due on the first note, as to which the Exch. of Pleas, affidavit is sufficient. Humfrey, in support of the rule, relied upon Jackson v. Yate (a). Per Curiam.The whole debt is stated in this affidavit to be due on the several notes mentioned therein, and the defendant is in substance alleged to be indebted by virtue of those three several instruments. The presumption is, that the defendant was arrested for the sum sworn to, and that he is now in custody for that amount. For part of that amount the affidavit shews no right to arrest; and as we know of no instance in which an affidavit of debt bad in part, and good in part, has been upheld as to the good part, the defendant must be discharged on filing common bail. 1832. KIRK v. ALMOND. Rule absolute. (a) 2 M. & S. 148. GLASCOTT v. CASTLE. THE Sheriff having paid the costs, after an attachment The Court will for not bringing in the body— refer an attorney's bill of costs to be taxed by the Master, Knowles obtained a rule to shew cause why the costs after it has been should not be referred to the Master to be taxed. paid, on application within a reasonable time, without shew stances of fraud Against which Hoggins now shewed cause. After paying circumment of an attorney's bill of costs, it is only under special or imposition. circumstances, such as fraud or gross imposition, that the party is entitled to refer the bill to be taxed. Exch. of Pleas, 1832. GLASCOTT v. CASTLE. BAYLEY, B.-That depends on the time when the application is made. If it is made within a reasonable time, Judges at chambers are in the practice of directing a bill to be taxed as a matter of course. If there has been any delay, then the party applying must shew fraud or imposition. I am therefore of opinion, in this case, that as the Sheriff has paid the costs, the party is fairly entitled to have the bill of costs taxed by the Master. Rule absolute. Process was returnable and served on the 4th of November, and a declaration delivered de bene WILLETT V. WILSON. THE process in this case was returnable and served on the 4th of November. On the 10th, pursuant to rule 10, T. T. 1 Will. 4, a declaration de bene esse was delivered, indorsed" the defendant is to appear and plead hereto in esse on the 10th, eight days." On the 14th, the plaintiff entered an appearance according to the statute. On the 18th, the defendant entered an appearance. On the 19th, the plaintiff, having received no notice of the defendant having entered an appearance, signed judgment without demanding a plea, and without searching whether an appearance had been entered for the defendant after the 14th. indorsed" to appear and plead in eight days." The plaintiff, on the 14th, entered an appearance for the defen dant, and, on the 18th, the defendant appeared, and the plaintiff on the 19th signed judgment with out demanding Hall, having obtained a rule to set aside the proceedings for irregularity, on the ground that the plaintiff had a plea:-Held, signed judgment without demanding a plea— that the indorse ment on the declaration enlarged the time for the defendant to appear Platt shewed cause.-According to the old practice, the declaration might have been delivered immediately on the return of the writ, but the rule 1 Will. 4, requires that judgment sign- six days shall elapse from that time before the declara in, and that the ed without de manding a plea tion can be delivered. The time for appearing, according was irregular. 1832. WILLETT WILSON. to the old practice, would have expired on the 12th, and Exch. of Pleas, for pleading on the 18th. The consequence of holding this proceeding to be irregular, would be to give the defendant additional time, which was not intended. The notice to appear and plead within eight days compels him to do both, and dispenses with the necessity of a demand of plea. The defendant had already appeared, as an appearance was regularly entered for him according to the statute, and no demand of plea was necessary. Lord LYNDHURST, C. B.-The difficulty is, you call upon him to appear in eight days. BAYLEY, B.-If the declaration had been delivered conditionally, with notice "to plead thereto in eight days," then an appearance having been regularly entered for the defendant according to the statute, no demand of plea was necessary, and your judgment might have been regular. If your notice had only required him to plead within eight days, then his appearance after you had appeared for him, would have been a nullity. The difficulty is, that you require him to appear within eight days, by which you give him time until the 18th to appear. The Court are of opinion that an appearance having been entered by him within that period, he was entitled to a demand of plea. The rule must, therefore, be made Absolute, with costs. Exch. of Pleas, 1832. Where a plea was delivered after the time for pleading had AMPTHILL V. SEMPLE. On the day after the time for pleading had expired, the defendant's attorney went to the office of the plaintiff's atexpired, but be torney, and delivered a plea to a clerk in the office. The defendant's attorney went from thence to the judgment office, where he met the plaintiff's attorney, and having ascertained that judgment was not signed, told the plaintiff's fore judgment signed, of which costs to be paid 's attorney that a plea had been delivered, and that he could not sign judgment. The plaintiff's attorney however signed judgment, alleging, that, as the time for pleading had expired, he was entitled to do so. Steer, having obtained a rule to set aside the judgment for irregularity, with costs to be paid by the plaintiff's attorney Alexander now shewed cause, and submitted, that, at all events, the plaintiff's attorney ought not to be called upon to pay the costs. Per Curiam.-The plaintiff's attorney signed judgment with full knowledge of the circumstances. If the plea be pleaded before judgment is actually signed, it is regular; and, therefore, to sign judgment afterwards, is an irregularity. There was no pretence for signing judgment here, and, therefore, the rule must be made Absolute, with costs to be paid by the plaintiff's attorney. Exch. of Pleas, 1832. HEWS v. PYKE. IN this case the defendant had deposited in the hands of Where money a was deposited in Court in lieu of putting in and perfecting bail above, pur suant to statute 7 & 8 Geo. 4, c. plaintiff obtained a verdict: Held, that he was not at liberty to issue exe cution for the whole sum re covered, but the Sheriff the amount for which the arrest was made, and 10%. for costs, in lieu of bail to the Sheriff; and that sum, together with a further sum of 10%., as an additional security for the costs of the action, was afterwards paid into Court, pursuant to 7 & 8 Geo. 4, c. 71. The plaintiff recovered, and the a verdict, taxed his costs, and issued execution for the whole amount of the damages and costs, without regard to the money paid into Court. The case having been afterwards referred to the Master to review his taxation, and considerable deduction having been made, the defendant applied to the Court for the costs of the motion to review, and to set aside the levy under the execution to the amount of the money paid into Court. The whole of the matter cution to the in dispute was referred to the Master, who reported, on the principle, that the plaintiff had no right to issue execution for the whole amount of damages and costs, but was bound to take the sum deposited out of Court, and levy for the remainder only. Crowther, now applied that the Master might be directed to review his report; and submitted that the statute was not compulsory on the plaintiff to take the money deposited out of Court, but only gave him a right to do so if he thought proper, leaving him still at liberty to issue execution for the whole amount of damages and costs. Follett shewed cause in the first instance.-The Master's report is correct, and he has construed the statute properly. The view taken by the Master was, that, as the money was deposited in Court in lieu of bail, there to remain to abide the event of the suit," the successful party only was entitled to take the money out. It would, there was bound to take the sum deposited out of Court, and to limit his exe surplus only. |