1833.

FARRAH V. KEAT.

If the attorney CHANDLESS shewed cause against a rule nisi, ob

of the party who has subpœnaed a wit

ness gives him

sent until a par

ticular time,

and in the interim, the cause is called

on in the absence of the witness, the latter is not

tained by Dowling for an attachment against a person named Farr, for an alleged contempt committed by him leave to be ab- in not attending at the assizes at Hertford, pursuant to his subpoena. In answer to the rule, an affidavit was sworn by Farr, in which he stated, that he had attended the assize town, on the commission day, and seen the attorney for the plaintiff on whose behalf the subpoena had been served. The attorney then told Farr, that the cause would not come on before twelve o'clock on the following day, and therefore he need not be in Court until that time. In consequence of this suggestion, he had not come into Court until half-past eleven on the following day. He then ascertained that the cause had been called on at ten o'clock, and disposed of, before he came into Court. Under these circumstances Chandless submitted, that the application on the part of the plaintiff had been fully answered.

liable to an attachment for a contempt.

Dowling, in support of the rule, submitted that the witness was bound to attend the Court according to the exigency of the writ of subpoena, and not having done so, he was guilty of a contempt. He cited Barrow v. Humphreys (a), in which Abbot, C. J. observed, "adverting to the form of the subpoena, which commands the witness to be before the Court on a given day, it does seem to me at present, that if a party forbears to attend, in obedience to it at the assizes, he is in contempt."

COLERIDGE, J.-But here, the supposed contempt is explained. The act of the plaintiff's attorney, in giving him

(a) 3 B. & Ald. 598.

leave to be absent at the time at which it appears the cause came on, I think dispensed with the attendance of the witness, so as to prevent his non-attendance from being a contempt. The present rule must therefore be discharged, and with costs.

Rule discharged, with costs.

1838.

FARRAH

V.

ΚΕΛΤ.

CHEESEWRIGht v. Franks.

Where the original judg

ment in an in

ferior court has been destroyed by fire, the execution to be

Court will allow

GURNEY moved for leave to issue execution on a judgment obtained in the Mayor's Court of the city of London. The application was made under the 19 Geo. 3, c. 70, s. 4, on account of the defendant having removed himself and his goods out of the jurisdiction. A peculiarity existed in the present case, that the original judgment in the cause had been destroyed by the late fire in the Royal Ex- of the judgment. change. It was consequently impossible, according to the usual practice, to remove the original judgment. The question therefore was, whether the execution could be issued on a verified copy of the judgment.

WILLIAMS, J.—I think, that under the peculiar circumstances, you may have your rule, and issue your execution on the verified copy of the judgment.

Rule granted.

issued under
a verified copy

DoE d. Cox v. BROWN.

WIGHTMAN shewed cause against a rule nisi ob- On an applica

tained by W. H. Watson, calling upon the lessor of the

tion under the
7 Geo. 2, c. 20,
s. 1, the mort-
gagor sufficient-

plaintiff to shew cause why, upon payment of all the principal monies due, and interest on the mortgage, and also ly shews him

self to have become the de

fendant in the action of ejectment, by swearing "that he had entered the usual appearance," without proceeding to state that he had entered into the consent rule.

1838.

DOE

d.

Cox

v.

BROWN.

costs to be ascertained by the Master, the same should not be taken to be in full satisfaction and discharge of the mortgage; and why the mortgagee should not reconvey the mortgaged premises, and deliver up all deeds, &c., relating to the title thereof to the mortgagor. This was an application under the 7 Geo. 2, c. 20, s. 1, by which it was provided, that "if the person having a right to redeem shall, at any time pending the action, pay to the mortgagee, or in case of his refusal, bring into Court, all the principal monies and interest due on the mortgage, and also costs to be ascertained and computed by the Court, or proper officer appointed for that purpose, the same shall be deemed and taken to be in full satisfaction and discharge of the mortgages; and the Court shall discharge the mortgagor of and from the same accordingly, and compel the morgagee, by rule, to reconvey the mortgaged premises, and deliver up all deeds, &c., relating to the title thereof, to the mortgagor, or to such other person as he shall nominate or appoint." The words of the section were pending the action;" and in Doe d. Hurst v. Clifton (a), it was held, that "a mortgagor, in order to entitle himself to the benefit, in a court of law, of statute 7 Geo. 2, c. 20, s. 1, must become a defendant in the action of ejectment; and where he is not such defendant, the Court will not interfere, either under the statute, or in the exercise of its general power over actions in the Court." The question then was, whether the mortgagor in the present case, had become defendant in the action. It was submitted that he had not. All that was sworn in the affidavit was, "that he had entered the usual appearance." This was not sufficient, because a party could not become defendant in an action of ejectment, without entering into the consent rule. Nothing appeared in the affidavit to shew, that he had entered into the consent rule. Not having entered

(a) 4 Ad. & El. 814.

into the consent rule, he was not a defendant, and therefore was not entitled to avail himself of this statute.

W. H. Watson, in support of the rule, contended, that enough was shewn on the face of this affidavit, to prove to the Court, that the mortgagor had become the defendant in the action. It was sworn "that he had entered the usual appearance," which must be taken to mean, that he had entered an appearance according to the practice of the Court, inclusive of entering into the consent rule.

WILLIAMS, J.-(After consulting Master Bunce.) The Master tells me, that the two acts of entering into the consent rule, and entering the appearance, are almost contemporaneous acts. As it is not sworn that the mortgagor has not entered into the consent rule, I must presume the proper steps have been taken in order to render the mortgagor the defendant in the action, according to the regular practice of the Court. I think, therefore, the present rule ought to be made absolute.

Rule absolute.

1838.

DOE
d.
Cox

v.

BROWN.

HANDFORD V. HANDFORD.

It

is no objection to a verdict that no

similiter has been added,

if there is an

ROSS shewed cause against a rule nisi obtained by R. V. Richards, either for setting aside the verdict found in favour of the plaintiff to the amount of 21. 13s. and entering a nonsuit, or obtaining a new trial, or for an arrest of judgment. The cause was an issue tried before the Judge of the Palace Court. The first objection was, that the plaintiff, in taking issue on the first of the two pleas, had for arresting not added the similiter for the defendant.

"&c." at the

end of the replication.

It is a ground

judgment on a verdict on a writ of trial,

if that part of

the form given by the rules of H. T. 4 Will. 4, which gives jurisdiction to inferior courts to try issues from the superior ones, is omitted.

1838.

HANDFORD

v.

HANDFORD.

R. V. Richards admitted that he could not support that objection, as an "&c." had been added to the replication (a).

Ross. The second objection was, that the writ of trial omitted any reference to the amount of the debt to be recovered in the action, and consequently it did not appear that the Palace Court had jurisdiction to try the cause. In the form of the writ of trial given by the Pleading Rules, 4 Will. 4 (b), the words were after the statement of the joinder of issue, "and forasmuch as the sum sought to be recovered in this suit, and indorsed on the said writ of summons, does not exceed 207., hereupon," &c. In the present instance, the only words introduced into the writ of trial were" forasmuch, &c.," without any reference to the sum sought to be recovered in the action. This, it was submitted, was an immaterial omission which the practice justified, and which it was now too late to make the subject of an objection. The third objection was, that there was a variance between the declaration and the evidence. The declaration was, for goods sold and delivered to the defendant. The proof was, that they were delivered to another person by the direction of the defendant. A delivery to a particular person, by the direction of another, was in point of law a delivery to that other. Had any point of this sort been taken at the trial, and attempted to be enforced, the Judge would, as a matter of course, have directed the record to be amended. No such objection however was enforced, but, on the contrary, it was waived. Under these circumstances, it was contended, that the present rule ought to be discharged.

(a) See Swain and Others v. Lewis, ante, Vol. 3, p. 700; Siboni v. Kirkman, ante, p. 98; and Brook

v. Finch, id. 313.

(b) Ante, Vol. 2, p. 329.