per costs and charges shall cause and procure the issue or issues that may be joined thereon to be tried in the same term, or at the next Assizes to be holden after the same term in and for the county of Westmoreland, if the Court shall not appoint any other time for the trial thereof, and if the Court shall appoint any other time, then at such other time; and shall give due notice of such trial to the prosecutor or his attorney; and shall appear from day to day in the said Court, and not depart until discharged by the said Court, then this recognisance to be void, or else to remain in full force." In August, 1847, the defendant was tried and found. guilty, subject to the opinion of the Court of Queen's Bench on certain points of law, which were ultimately determined against him. He subsequently came up for judgment, and, in pursuance of the sentence of the Court, was imprisoned for the space of two calendar months. In December, 1848, payment of the costs of the surveyor in prosecuting the indictment, amounting to 791. 2s., was demanded of the defendant, and, not being able to pay them, he was, on the 9th of May, 1849, taken in execution to Appleby gaol, where he remained imprisoned till the 27th of July, 1849, when he was discharged out of custody under the Insolvent Debtors Act. The affidavit also stated, that the defendant did not commence or prosecute the said appeal from any vindictive or improper motive whatever, but solely, as he conceived, for the benefit of himself and the poorer inhabitants of Kirby Lonsdale and Hutton Roof aforesaid. That he was fifty-six years of age, and was possessed of no property whatever, and depended entirely on his labour as a journeyman shoemaker for support. That he was very poor, and had lately become so weak of sight that he could hardly earn as much as would support him. On the 11th of June, 1849, the recognisance was ordered to be estreated into this Court. Pashley, (for both principal and bail,) in support of the 1850. In re THORNTON. 1850. In re THORNTON. tem. petition. This Court has power to stay proceedings, and discharge the defendant out of custody propter paupertaSuch jurisdiction has been exercised both at common law and under the statute 4 Geo. 3, c. 10. It appears from Price's Exchequer Practice (a), that a precedent of the exercise of this authority at common law is found so far back as the 29 Edw. 1: "That was a case in which the Treasurer and Barons of their own authority discharged a party upon his petition by manucaption from imprisonment, on account of a fine imposed on him by Justices of Assize, for redisseisin; and ultimately they discharged the fine, and gave judgment that the party go quit of the redisseisin, and that in consideration of his poverty." The record is there set out; and in stating the decision of the Court, the word "concordarunt," not "consideratum est," is used. Also, in Manning's Exchequer Practice (b) it is said, "The parties may apply in a summary way for the favour of the Court of Exchequer, which is empowered, under a writ of Privy Seal, issued at the commencement of every reign, to compound or discharge any fines, issues, amerciaments, and recognisances, according to the circumstances of each case." Further, so far as regards the principal, express authority is conferred on the Court by the 4 Geo. 3, c. 10(c). The prosecutor is himself to blame in having (a) Book 1, c. xiii, p. 445. nisances contained, many of which neglects of duty have happened by the inattention of ignorant people, some of whom are imprisoned, and a great number of others liable to be so, by the process constantly issued against them out of the Court of Exchequer, and directed to the sheriffs, though no other prosecution be subsisting, but merely for such forfeitures of their recognisances, from which there are no easy means at present, for poor persons especially, to procure such discharge. For indicted the defendant, and thereby created more costs, instead of proceeding under the 103rd section of the Highway Act, 5 & 6 Will. 4, c. 50. Then, as to the sureties, they have in all respects complied with the condition of the recognisance, which is in the terms prescribed by the 5 Will. & M. c. 11, s. 2. The 3rd section of that statute enables the Court to give costs to the prosecutor if the defendant be convicted; and provides, " that the prosecutor, for the recovery of such costs, shall within ten days after demand made of the defendant, and refusal of payment, on oath, have an attachment granted against the defendant by the said Court for such his contempt; and that the said recognisance shall not be discharged till the costs so taxed shall be paid." That, however, cannot apply to the sureties, who have never become bound to pay costs. The objection is properly taken in this Court: Regina v. Sydserff (a). [Parke, B. With respect to Thornton we may stay proceedings; but there is no reason why the prosecutor should not have the benefit of the sureties' recognisance. The statute says that the recognisance shall not be discharged till the costs are paid; and we must construe the Act according to its terms, unless such construction would lead to absurdity, which it will not here. Alderson, B.-The statute does not say that the recognisance shall not be discharged "till the defendant has paid the costs," but "till the costs shall be remedy thereof, Be it enacted &c. That, from and after the 5th May, 1764, it shall be lawful for the Barons of his Majesty's Court of Exchequer, upon affidavit and petition to be presented to them by or on behalf of the person or persons imprisoned, or liable to be imprisoned, on the forfeiture of any such recognisances, to discharge such person or persons, by order from the said Barons, without any quietus to be sued out for that purpose; for which order no more than one pound and one shil ling shall be taken by the officer (a) 2 D. & L. 564. 1850. In re THORNTON. 1850. In re THORNTON. paid." The principal has entered into a recognisance, and is also to do some act, until which being done the recognisance is not to be discharged. The sureties have entered into the same recognisance, but they are to do nothing,— they only undertake that the principal shall do that which he is bound to do. Then why should not the prosecutor have the benefit of the sureties' engagement that the principal will do that which he has undertaken to do, and which the sureties have undertaken that he shall do?] If the 2nd section had stood alone, there would have been no ground for saying that the sureties were liable for costs. Then a special provision is superadded in respect of the principal only. No person entering into this recognisance would suppose that he had engaged to do more than was expressed. Even on equitable grounds the sureties are entitled to relief, for they have been deceived by the form of the recognisance. [Alderson, B.-It is reasonable that a party who undertakes that his principal shall do a particular act, shall be bound to the same extent as the principal. Pollock, C. B.-If the sureties have done all that they were required to do by the condition of the recognisance, they may plead that in answer to the proceedings upon it, though, as at present advised, I think they would probably plead in vain. At all events, we cannot interfere on motion to relieve them. As to the principal, we will stay all proceedings until the further order of the Court; but with respect to the sureties the rule will be discharged.] Ramshay appeared on behalf of the surveyor of highways, to oppose the petition, but was not called upon. Order to stay all proceedings upon the recognisance, as regards the said John Thornton; but without prejudice to any question as to the liability of the sureties to pay the amount of the penalty of their recognisance. 1850. FISHWICK V. MILNES and Another. TRESPASS for seizing and taking the plaintiff's goods. -Pleas, not guilty, and a denial that the goods were the plaintiff's; upon which issues were joined. At the trial, before the Judge of the Court of Record of Salford, it appeared that the plaintiff was tenant to the Earl of Derby of a farm called Cross Hall; and that, rent being in arrear to the amount of 100%., on the 4th of November, 1848, one Buckley, as bailiff, distrained the plaintiff's goods; and the distress was withdrawn upon the plaintiff signing the following document: Jan. 31. The following document was held not to re quire an agreement stamp "I, N. F., do hereby request S. B, bailiff to my landlord, who, on the 4th of November, 1848, having distrained my goods on the premises which I now hold, situate at &c., for the sum of 100%. as rent due to S. B.; and I request him to forbear the sale thereof until the 2nd of February, and I do here by request, agree, and con sent that the goods so dis trained shall remain at my proper cost in "I, Noah Fishwick, do hereby request Samuel Buckley, bailiff to the Earl of Derby, my landlord, who, on the 4th day of November, 1848, having distrained my goods and chattels, and all other my effects on the premises, which now I hold, situate at Cross Hall, in Walmesley, for the sum of 100%., as being rent and arrears due to the said the said rent; Samuel Buckley from the said premises; and I request him to forbear the sale thereof until the 2nd day of February, 1849, in order to enable me the said Noah Fishwick to discharge the said rent; and I do hereby request, agree, and consent, that the said goods, chattels, and stock so distrained shall remain at my proper cost in his possession upon the said premises at Cross Hall, and where they now are, until the 2nd day of February, 1849; and I undertake to give up the same goods and chattels wholly and all, and not to replevy the same; and that this distress shall remain in full force and power during that time; and I do hereby undertake to give up peaceable possession of the premises and effects distrained, on the 2nd of February, 1849, and his possession upon the pre mises until the 2nd of Febru I ary, 1849; and undertake to give up the same goods, and not to re plevy the same, and that this distress shall re main in full force during I do hereby undertake to give up peaceable possession of the premises and effects distrained on the 2nd of February, 1849, and pay all costs and charges attending this distress." VOL. IV. ННН EXCH. |