255 QUEEN'S BENCH PRACTICE COURT. Hilary Term, IN THE FIRST YEAR OF THE REIGN OF VICTORIA. ELLIOTT v. GUTTERIDGE, WHITE moved for leave to add certain bail to those already put in, but who had been rejected on a preliminary objection taken at the time when they came up for the purpose of justifying. The present case did not come within 5 Reg. Gen. T. T. 1 Will. 4 (a). The words of that rule were, "That the bail, of whom notice shall be given, shall not be changed without leave of the Court or a Judge." That rule clearly contemplated cases in which no attempt had been made to justify the bail originally put in, and not cases where an attempt had been made to justify. He cited the case of Rex v. The Sheriff of Essex (b). PATTESON, J.-I think this case is distinguishable from the one you cite; for, it does not appear in that case that the bail had there endeavoured to justify. If I were to grant this application, I should be letting in all the mischief, which it was the object of that rule to prevent. If the bail originally put in are substantially good, an affidavit to that effect might be made, and the bail be again brought up for the purpose of justifying. Why is that bail not brought up? Because, the defendant knows that they are insufficient. I think, therefore, that the present application cannot be granted. (a) Ante, Vol. 1, p. 103. Rule refused. (b) Ante, Vol. 2, p. 782. 1838. Where bail has been rejected on the ground of a technical objection, the Court will not allow bail to be added. 1838. the age of 21, Ex parte CRAGG. A clerk, under WIGHTMAN applied, on behalf of a young gentleman who had not yet attained the age of twenty-one, that he might be examined pursuant to the new rules, although he was still an infant. There was no rule of Court or act of Parliament positively directing that a person must have attained full age before he could be admitted as an attorney. No reason could exist why he should not be examined. PATTESON, J.-I never heard of an infant attorney. He can not be admitted until he has attained the full age of twenty-one. An attorney must necessarily enter into many contracts, and then, when it is sought to enforce them, the plaintiff may be answered with a plea of infancy. The examination is preparatory to his being admitted, and therefore he must be then presumed to be of fit age at the time to be admitted. The proper course is for him to wait until he is twenty-one. There can be no reason for suspending the rules in favour of this applicant. The lessor of the plaintiff in DOE d. STEVENS v. LORD. (Before the Four Judges.) Refused. WARREN shewed cause on the last day of term ejectment, who against a rule obtained by Waddington in the Bail Court was a mortgagee, obtained judgment, and after more than a year and a day had elapsed, without reviving the judgment by sci. fa., issued a hab. fa. poss., which, after execution, was set aside by a Judge's order; but the judgment left in force. On a motion for a rule for a writ of restitution:-Held, that such writ could not issue; but the rule might be moulded so as to order the lessor of the plaintiff to restore possession. Semble, per Patteson, J., that a party having recovered in an ejectment, cannot, by his own act only, and without the authority of the Court, take possession. Though the full Court will not permit a matter of law to be discussed on the last day of term, they will allow cause to be shewn against a rule praying for a writ of restitution, where it was referred to the full Court from the Bail Court, and counsel had been unable to bring it on till the last day, owing to the press of business in the Court, and the case is very urgent. on an early day in the term, and which Littledale, J., had referred to the full Court. The rule called on the lessor of the plaintiff to shew cause why a writ of restitution should not issue to the sheriff of Northamptonshire, ordering him to restore possession to the defendant of the lands, tenements, and hereditaments seized by virtue of a writ of possession, which had been set aside by the order of Williams, J., for irregularity, and why the costs of all such proceedings should not be paid by the lessor of the plaintiff, and why all further proceedings upon such writ of possession should not be stayed. PATTESON, J.-This is a point of law, and cannot be taken on the last day of term. That is a settled rule. Warren.—If a mere matter of practice as to the form of a particular application to the Court, is such a point of law as the rule is aimed at, of course the case must stand over, and be put into the peremptory paper. A large amount of crops will perish in the mean time. Lord DENMAN, C. J.-Why could you not have shewn cause on an earlier day of the term? When was the case sent here? Warren.-Three or four days ago; since which the Court has been constantly occupied, and I had no opportunity of moving, though in daily attendance. Waddington also urged the Court to dispose of the rule, as it was of great importance to both parties. Lord DENMAN, (after consulting the other Judges).— We think we ought to hear you; you may proceed. Warren. Though eleven affidavits are sworn on the part of the defendant, they agree with the only one sworn 1838. DOE d. STEVENS V. LORD. 1838. DOE d. STEVENS v. LORD. by the lessor of the plaintiff, in sufficient points to raise the matter of law on which it is contended that this rule must be discharged, and with costs. This action was brought in 1833, by the mortgagee, against the heir at law of the mortgagor; was tried, and a verdict found for the plaintiff, at the Spring Assizes for Northamptonshire in 1834. Judgment was signed in Michaelmas Term, 1834, and a writ of possession, with a fi. fa. for costs incorporated, issued soon after; but owing to negotiations between the parties, out of which arose a suit in equity which was not terminated till the latter end of 1836, it was not executed. Without suing out a scire facias, the lessor of the plaintiff, in June last (1837), issued a second writ of habere facias possessionem, under which the sheriff gave possession, but which writ, on the 11th of July, was set aside by an order of Williams, J., for irregularity in being issued without the judgment having been revived by sci. fa.; but the order did not direct possession to be restored. When the order was served upon the lessor of the plaintiff, he gave a written notice to the defendant, that he abandoned all right founded on the hab. fa. poss., which had been set aside, and was ready to pay the costs of it; but that, as mortgagee in possession, he had an independent right to remain, especially having a judgment of the Court in his favour then in full force. After waiting for two months, during which the lessor of the plaintiff had incurred great expense in gathering the crops, and resisting many attempts on the part of the defendant forcibly to regain possession, a summons was taken out in September to the same effect as the present rule, but upon which Tindal, C. J., refused to grant an order. The present rule was then applied for. The first objection to it was— DENMAN, C. J.-A judge's order has set aside the writ by means of which you have obtained possession, and yet you Warren. However that may be, it is submitted that the present rule must be discharged, since it asks for what the Court cannot grant, and, under the circumstances, ought not to grant, if it could. First, a writ of restitution can never issue so long as the judgment remains, as in this present case, in force. In 2 Lit. Prac. Reg. 577, it is laid down that "Restitution is a writ which lies where a judgment is reversed by writ of error; and the Court which reverses the judgment gives, after the reversal, a judgment for restitution; for note, a sci. fa. quare restitutionem habere non debet, reciting the reversal of the judgment, and the writ of execution, and return thereof filed, must issue forth." This agrees with all the old authorities; and proves that this writ cannot issue while the judgment stands in full force, and further, that it must be founded on matter of record. The latter position is expressly laid down in the same authority: "There ought to be no restitution or re-restitution granted of the possession of lands where it cannot be grounded on some matter of record appearing to the Court" (a). Again: "The restitution is to be granted by the Court upon a suggestion of the insufficiency of an indictment of forcible entry or other matter, until the certiorari be returned and filed; for before the returning and filing of it, the Court hath nothing before them upon record to judge upon." It is also said that a writ of restitution is not properly to be granted but in such case where the party cannot be restored by an ordinary way of justice or course of law; for where ordinary remedies may be had, extraordinary are not to be resorted unto; and, in a previous part of the same book, is given an instance of an ordinary remedy: (a) Citing Hill, 22 Car. B. R. 1838. DOE d. STEVENS บ. LORD. |