Exch. of Pleas, 1831.

GIBSON v. WHITE.

COMYN, on behalf of the bail, having obtained a rule

nisi for time to render the defendant, who was in the custody of the keeper of Newgate, under a warrant from commissioners of bankrupt, and was to be brought before the commissioners in a few days

Butt shewed for cause, that the bail had not justified; and contended, that they could make no motion until by justification they were in Court.

But the Court said, that, as the defendant was as it were in criminal custody, and the bail could not make the render in due time, this was an exception to the general rule, and therefore the bail ought to have time to render.

Rule absolute.

POOLE V. SAlter.

IN this case the defendant had pleaded judgment recovered; and there not being time in the remainder of this term for the plaintiff to move for a rule to produce the record

Alexander moved, on affidavits that the plea was totally false, to be at liberty to treat the plea as a nullity, and sign judgment; and he urged, that the plaintiff would be delayed until next term, if this course were not allowed.

It appeared that the plea had been delivered in time for the plaintiff to have proceeded and got his judgment in the usual way. And

The Court refused to set aside a plea of judgment re

covered, on affi-
davit of its
being totally
false, though

there did not

remain time for

the plaintiff to get judgment in the term, he

having neglected to take the regular steps for that purpose

in the earlier part of the term.

Exch. of Pleas, 1831.

POOLE

V.

SALTER.

Per Curiam.-You should have taken the regular steps to have obtained judgment in the earlier part of the term.

. Rule refused.

A plaintiff cannot have con

current writs of fi. fa. and ca.

sa., and act under both; and therefore, where

HODGKINSON v. WHALLEY.

R. V. RICHARDS had obtained a rule to discharge the defendant out of custody, on the ground (a), that the capias ad satisfaciendum under which he had been taken, had been issued before the return of a concurrent writ of a defendant was fieri facias, under which a levy had been made. The whole amount of the levy was paid over to the landlord for rent, under 8 Anne, c. 14, s. 1, except the sum of 17s. 6d., which went towards the expenses of the execution.

taken under a

ca. sa., before

the return of
a fi. fa. under
which the plain-
tiff had seized,
though the
whole amount
of the levy was
swallowed up

by the landlord's
claim for rent,

Follett shewed cause. The plaintiff had a right to issue both writs, but only to execute one (b). The question, then, is, whether there was any execution of the fieri except 17s. 6d., facias? Now here, the rent swallowed up all except the sum of 17s. 6d., which must go towards the expenses. execution The There was, therefore, no occasion to return the writ of fieri facias, as nothing was done under it towards satisfying the plaintiff.

which went towards the ex

penses of the

Court discharg

ed the defend

ant out of custody.

BAYLEY, B.-The record would be irregular if this rule were not made absolute, for there would appear an award of both a fieri facias and a capias ad satisfaciendum at the

(a) Another ground was, that the cognovit on which the judgment had been entered, had been obtained from the defendant whilst in custody, without the presence of an attorney; but Rich

ards abandoned this point, conceding that there was no rule of this Court on the subject applicable to cognovits.

(b) Miller v. Parnell, 6 Taunt. 371.

1831.

HODGKINSON

v.

WHALLEY.

same time. No doubt, both may issue together, because Exch. of Pleas, the practice is not to enter them on the record if nothing is done. But, if you execute one, you must make an entry of the return of that, before you can award the other. Here, there has been a seizure under the fieri facias; and if an action of trespass were brought for the seizure, you would have to justify under the fieri facias. It is clear, on principle, that you cannot have two writs, and act under both at the same time (a).

The rest of the Court concurring, the rule was made

Absolute, with costs, if defendant would un-
dertake to bring no action; without
costs, if he would not.

(a) See Edmond v. Ross, 9 Price, 5.

WILSON V. MINCHIN.

PLATT shewed for cause, against a rule obtained by Follett, calling on the plaintiff to find security for costs, that an order for time to plead had been granted; and he cited Duncan v. Stent (a).

[Bayley, B.-That was after plea pleaded].

The party, here, is in the same situation, by taking an order for time to plead, as if he had actually pleaded.

BAYLEY, B.-A defendant may come to ask for security for costs at any time before plea pleaded. The principle is, that the application should be made in the earliest stage of the proceedings, in order to avoid unnecessary expense.

Security for applied for, after an order for

costs may be

time to plead.

(a) 5 B. & A. 702; 1 D. & R. 348.

Exch. of Pleas, 1831.

WILSON

บ. MINCHIN.

The rest of the Court concurring. The rule was made absolute.

Rule absolute (a).

(a) See Chitty's Practice, 102.

ANONYMOUS.

The Court will THIS was an action by two plaintiffs.

not order securi

ty for costs, on

the ground of

one of the plain

Follett had obtained a rule for security for costs, on the

tiffs being resi- ground of one of the plaintiffs residing abroad; against

dent abroad,

where another

of the plaintiffs is resident in

this country.

which

Platt now shewed for cause, that the other plaintiff resided in this country.

BAYLEY, B.-I know of no case in which security for costs has been required, where one plaintiff was in this country and the other abroad.

The rest of the Court concurred, and the rule was discharged.

Rule discharged (a).

(a) See Tidd, 535.

PERRY V. WILLIAM TURNER, JAMES TURNER, and ISAAC
JOEL.

JUDGMENT had been entered up, and execution issu-
ed on a cognovit, dated 3rd November, by which an in-
stalment of 51. was to be paid on the 5th, and the remain-
der of the plaintiff's demand at other specified periods, and
the plaintiff was to be at liberty to enter up judgment and is-
sue execution for the whole on any default. The two Tur-
ners had signed the cognovit on the 3rd November, but the
other defendant, Isaac Joel, did not sign it until the 7th, the
first instalment being then due, and a default having been
made by its non-payment. On the morning of the 7th
November, one of the defendants went to the office of the
plaintiff's attorney, and paid a clerk there 57., and asked for
a receipt, and that the payment of the first instalment should
be indorsed on the cognovit; when he was informed by the
clerk that the attorney had locked up the cognovit. Atten
o'clock on that day judgment was signed. The plaintiff's at-
torney informed the plaintiff of this payment, and received
instructions to give no further indulgence. He thereupon
gave the defendants notice that he should insist on the de-
fault; and, on the 8th, gave a notice of the taxation of costs
for the next day, the 9th, which, upon the application
one of the defendants, was postponed until the 10th.
the evening of the 9th, the plaintiff's attorney sent by post
a notice to one of the defendants, to attend the taxation of
costs at two o'clock the following day, which was received
at ten o'clock of the morning of the 10th. The defendants'
attorney attended at the office at two o'clock; but, finding
that the Master, who does not attend until three, was not

of

On

day; he did not attend, and the costs were taxed in his absence:-Held, that the judgment was regular-that the execution of I. J., on the 7th, related back to the 3rd-that the acceptance of the instalment by the clerk without authority did not waive the default-and that it was unnecessary, under the circumstances, to give a full day's notice to tax costs on the 10th.

Quare, whether the omission to give one day's notice to tax costs renders a judgment for debt and costs irregular.