1837. BRASHOUR v. RUSSELL. ant has been in custody twenty three days, it is too late to object to the copy of the writ of capias served on him at the time of his ar ground of its purporting to sued in the reign of Will. 4, have been is although really issued in that of Victoria, as the should have been made within the time for putting in bail. Semble, that W. H. WATSON shewed cause against a rule obtained After a defendby Wilde, Serjt., for setting aside the copy of a writ of capias for irregularity, and for the discharge of the defendant out of custody in this action, on his entering a common appearance, and for the payment of the costs of the application by the plaintiff. From the affidavit on which the rule had been obtained, it appeared that a writ rest, on the of capias had been issued on the 7th September, 1837, and the defendant arrested on the 12th October, and that a copy of the writ of capias had been delivered to him, which was in the handwriting of Thomas Williams, the clerk to Ralph Israel, the officer of the sheriff, and application that in that copy the writ purported to have been issued in the reign of William the 4th, although the writ had been really issued in the reign of Victoria. As this error only existed in the copy of the writ of capias, Watson such an error contended that it was not of such importance as to induce the Court to discharge the defendant out of custody. was not shewn that the original writ, or that the copy of the writ, which was delivered to the sheriff's officer, was irregular, but the objection was taken to the copy served on the defendant, and which was sworn to be in the handwriting of some persons with whom the plaintiff had no connection. The error, besides, did not prejudice the defendant. An affidavit was now produced in answer to that which was sworn by the defendant, in which it was stated that a true copy of the writ had been delivered to the sheriff's officer. The plaintiff, therefore, had done what was required of him by the statute 2 Will. 4, c. 39, s. 4. The plaintiff surely should not be deprived of his just rights on account of a technical error like the present, committed by a person over whom he had no controul, and which was solely attributable to an old printed form having VOL. VI. D. P. C. It does not make the arrest void, but merely ir regular. 1837. BRASHOUR v. RUSSELL. been used without the necessary alteration in the name of the Sovereign. The arrest was regular, and therefore the defendant ought not to be discharged out of custody, although the irregularity complained of might be a reason for his having an amended copy of the writ. It might be said that the arrest was not complete, for that the service of a true copy was a necessary ingredient in order to render it regular; but the statute required that the defendant should be served "upon or forthwith after the arrest," and it was therefore clear that the custody was good (a). BOSANQUET, J.-How is the defendant to know that he is lawfully in custody, unless the copy of the writ served on him is correct? Have not many prisoners been discharged on similar grounds? W. H. Watson.-In those cases there was some defect in the copy delivered by the plaintiff to the sheriff, or in the original writ. COLTMAN, J.-The arrest in this case is not the point, but the detention. In the case of Hodd v. Langridge (b) the Court held, that the copy of the writ served on the defendant must be regular, and that, if a defective copy were given, the Court would presume that that delivered to the sheriff was also irregular. W. H. Watson then urged, that the defendant was out of time in coming to the Court so long after the arrest. Twenty-three days had elapsed between the time of his arrest and his applying for the present rule. Primrose v. Baddeley (c) was an authority to shew that such an appli (a) See Shearman v. M'Knight, ante, Vol. 5, p. 572. (b) Ante, Vol. 5, p. 721. cation must be made within a reasonable time, and that the rule applied to prisoners as well as others; and Cox v. Tullock (a) shewed that when the irregularity was in proceedings had in vacation, the application might be made at chambers, and that the party could not wait until the first four days of term. Wilde, Serjt., stated that the matter had been taken to chambers two days after the arrest, and had been adjourned for consideration. W. H. Watson.-As this did not appear on the affidavits, the Court could not take it from the statement of counsel. COLTMAN, J.-In Fowell v. Petre (b), a party applying to the Court after nineteen days, and objecting to a defect in the affidavit to hold to bail, was held to be too late. Wilde, Serjt., in support of the rule, contended that the arrest was not regular, unless the whole of the terms required by the statute had been complied with. Although the statute did not absolutely say that the arrest should be void unless all the things required were done, yet the Courts had given effect to its meaning, in requiring the terms to be strictly fulfilled. The custody of the defendant must be entirely legal, and it was no answer to say that the failure was in any particular person. No defendant could be rightfully in custody under the statute, unless he received a true copy of the writ of capias; and whether it was that the writ was wrong, or that the copy was wrong, it was immaterial, and the error was equally available. The very fact of his being in custody would prevent him from ascertaining where the error commenced. (a) Ante, Vol. 2, p. 47. (b) Ante, Vol. 5, p. 276. 1837. BRASHOUR บ. RUSSELL. 1837. BRASHOUR v. RUSSELL. Then, with regard to the question of time, it was sufficient for the defendant to say that he was now in custody, and, that custody being illegal, he would be entitled to his discharge. The objection was not a mere technical one to the want of form of an affidavit, but it was a substantial one to the legality of the custody; and there was an obvious distinction between the two cases; the one depended on the practice of the Court, the other on the statute. If a correct copy had been served, the case might have assumed a different aspect; but it was not so, and therefore the objection as to time could not apply to the case. The statute was for the benefit of defendants, and a strong opinion was given by this Court in the case of Nicol v. Boyne (a), of the necessity of adhering strictly to the precise forms which were given by statutes. The case of Smith v. Pennell (b) was also in point. The plaintiff could not lose any thing by this rule being granted, for he had his remedy against the sheriff in the event of his suffering by his neglect; but it was enough for the defendant to say that there had been an irregularity, and to claim the benefit of the statute. TINDAL, C. J.-I think this application comes too late, and it is a fault on the part of the defendant that he has made no excuse for not applying to a judge at chambers. It is a rule often acted upon, that unless some sufficient cause is shewn for not applying to the Court on any ground of irregularity, an application will not be entertained after eight days shall have elapsed, which is the time limited for putting in special bail. A question has arisen, as to whether, in consequence of the error in the copy of the capias, delivered to the defendant, the arrest is void, or, whether the error amounts to more than an irregularity, and on looking at the rule of 10 Reg. Gen. BRASHOUR บ. RUSSELL. M. T. 3 Will. 4 (a), I think it is an irregularity only. `By 1837. that rule, it is clear, that on an application to the Court. by the party who sued out the writ, any irregularity may be permitted to be amended, and if that be so, I think the present case comes within the rule to which I have referred, and the application is consequently too late. It is unnecessary to go into the other point as to whether this neglect of the sheriff's officer, would be sufficient to induce the Court to discharge the defendant out of custody, but I think there is no doubt that it would be so. BOSANQUET, J.-I am of the same opinion, and I do not think it necessary to repeat the grounds stated by the chief justice, but I think that this omission to state correctly the name of the king or queen, falls within the rule of M. T. 3 Will. 4. Then it is quite clear, that it must be taken advantage of in reasonable time, and eight days is the time limited in a case of this description. That has been decided, and it has been acted upon frequently at chambers. On the other point, it is unnecessary to give any opinion, although I should be very sorry to be supposed to have any doubt on the subject. COLTMAN, J.-I am of the same opinion. (a) Ante, Vol. 1, p. 473. Rule discharged, DOWNTON v. STYLES. BEST had obtained a rule nisi for an attachment against An affidavit in support of a rule W. Finch, an attorney of the Court, for not obeying an for an attachorder of this Court. ment against an attorney for not obeying an order of Court, not stating him to be an attorney of the Court in which the rule has been obtained, is sufficient, since 1 Vict. c. 56, s. 4. |