Com. Pleas Roux v. SALVADOR. is highly prejudicial to the underwriters. It may be further prejudicial in its direct consequences; agents may fail in whose hands the proceeds are left; the rate of exchange may alter where delay in procuring the remittance of the price has taken place; and, still further, the right of the underwriters to dispute the validity of the sale with the purchaser of the cargo, upon the ground of fraud, might, by the intervention of time, be impaired or entirely defeated. As notice of abandoment, therefore, under the circumstances of this case, is an act of no difficulty to the assured, but of great service to the underwriter; as it is calculated to prevent fraud, as it is consistent with the general understanding which has prevailed in practice, and sanctioned by the authority of decided cases, we think it was a necessary preliminary to the plaintiff's right to sue for a total loss in the present case; and, therefore, for want of such notice of abandonment, we give our judgment for the defendant. Nonsuit to be entered. Jan. 30th. Where an action is brought for false im prisonment, and the defendant afterwards prefers an indict ment against the plaintiff, for LONG v. HUTCHINS. BOMPAS, Serjt., shewed cause against a rule which had been obtained for judgment, as in case of a nonsuit, against the plaintiff for not proceeding to trial. The action was brought for false imprisonment. Since the commencement of the action, the defendant had gone before the grand jury, and preferred an indictment against the plaintiff for an assault, which was the offence alleged to have been committed by the plaintiff, for which he was imprisoned. The indictment had since been removed by certiorari into offence charged the Court of King's Bench, where it remained to be tried. It is submitted, that, under the circumstances, the plaintiff would have been much to blame if he had not withdrawn the record until the indictment was tried. an assault, which was the to have been committed when the plaintiff was imprisoned, the Court will not compel the plaintiff to try his cause, until the other proceedings are terminated. Atcherley, Serjt., supported the rule, and offered to accept a peremptory undertaking to try the cause. Sed per Curiam.-It was not reasonable to expect that the plaintiff should proceed with his action, whilst your proceedings, which related to the same subject matter, were still pending. This rule must be discharged, and with costs. Rule discharged. Jan. 29th. Where a de fendant is ar rested, either in GRANT v. GIBBS. RULE had been obtained, calling upon the plaintiff to shew cause why proceedings taken upon the bail-bond should not be set aside. The town or country, defendant was arrested under a writ of capias, more than 40 miles from London. Bail was put in within eight days, but notice to the plaintiff's attorney was not given within that time, and the plaintiff then took proceedings on the bail-bond. under a writ of capias, he has only eight days to put in and perfect special bail; the R. H. T. 2 W. 4, No. 14, being abrogated by the Uniformity of Process Act, 2 W. 4, c. 39. Kelly shewed cause.-This is a question of considerable importance, and involves a point which has not yet been decided. It is, whether a defendant, who resides more than 40 miles from London, has more than eight days after his arrest to put in special bail. It is submitted that all defendants, whether Merewether, Serjt., contrà.-The question is, whether the Statute 2 Wm. 4, c. 39, repeals the rule of Hilary Term, 2 Wm. 4. The 14 sec. of the same Statute may be material; it enables the judges "from time to (a) The Uniformity of Process Act. (b) The third warning is, “If a defendant, baving given bail on the arrest, shall omit to put in special bail as required, the plaintiff may proceed against the sheriff, or on the bail-bond. (c) 2 Dowl. P. C. 201; S. C. 5 Barn. & Adol. 460. (d) 2 Dowl. P. C. 26; S. C. 1 Cr. & Mee. 492. (e) E. 49 Geo. 3. Com. Pleas. GRANT V. GIBBS. time to make all such general rules and orders as in their judgment shall be deemed necessary or proper." It is submitted, that the rule of Hil. 2 Wm. 4, must be considered to be still in force, as the judges have made no new rule upon the subject of putting in bail. As to the argument, that the expression "put in," used in the writ of capias, includes that notice must also be given to the plaintiff's attorney within eight days, it is a forced construction of the words, and will prove very inconvenient to defendants who reside in remote parts of the country, and at a distance from their professional advisers. TINDAL, C. J.-If the rule of Hil. 2 Wm. 4, which has been referred to, were still in force, the defendant might have shewn good ground for setting aside the proceedings taken against the bail; but the Stat. 2 Wm. 4, c. 39, which passed on the 23d of May, 1832, contains provisions utterly inconsistent with the former rule which had been promulgated.-[His Lordship here read through those portions of the Stat. which were cited in the argument.]-The second point which has been commented upon refers to the construction which ought to be given to the words " put in," and reference has been made to a former rule of this Court (ƒ), which directs that bail shall not be considered as put in until notice to the opposite party has been given. We should be flying from the known and obvious meaning of these words, if we were to say that the legislature used them in any other sense, than that in which this Court had previously understood them. Under the circumstances of this case, as the act of the defendant in not putting in bail in proper time might have been an innocent act, and as this question has not been previously determined, the proceedings must be set aside upon payment of costs. PARK, J.-This is a case of considerable difficulty, and at first sight I should have thought that the rule of Hilary Term was still in force; but as it appears that the subsequent Statute has abrogated the rule, it only now remains for the consideration of the Court, whether a new rule should not be made for future practice; for defendants who live at a distance ought perhaps to have a longer time than eight days allowed them to put in special bail. I agree that the rule of Easter Term, 49 Geo. 3, expressly puts a meaning on the words "put in," and that we must construe them with reference to that rule. The other judges concurred. Rule absolute, upon payment of the plaintiff's costs. (ƒ) R. E. 49 Geo. 3, C. P. Tidd's Prac. 253, 9th ed. Jan. 31st. tiff is a mariner and is abroad on a voyage, his family being left in this FORD V. BOUCHER. Where a plain- WILDE, Serjt., shewed cause against a rule which had been obtained, calling upon the plaintiff to give security for costs. By the affidavits, it appeared that the plaintiff was a master mariner, now absent on a voyage, but his family expected he would return at the usual period. The affidavits upon which the rule nisi was granted, imputed insolvency to the plaintiff, which was now positively denied. It is submitted, that, under such circumstances, the rule ought to be discharged, with costs. country in lodg he will not be required to give security for costs. Ryland, in support of the application, cited Wells v. Barton (a). There the plaintiff had left England for America, and although it was sworn that he was only temporarily absent, he was compelled to give security for costs. By the affidavits on the other side, it appeared that the plaintiff's family is now residing in lodgings. TINDAL, C. J.—The affidavits upon which this rule was obtained state circumstances which turn out to be untrue. I cannot accede to the general The rule must be dis rule laid down in the case which has been cited. charged, with costs. The other judges concurred. (a) 2 Dowl. P. C. 160. Rule discharged (b). (b) Vide Orr v. Bowles, ante p. 23; Kasten v. Plaw, 1 Moo. & Payne, 30. Com. Pleas FORD BOUCHER. Qu BARNES dem. v. JACKSON and ors UARE Impedit against three defendants, the patron, the bishop, and the incumbent. The writ was returnable on the 8th of January, 1834; two defendants appeared on the 11th of January following, but the sheriff returned nihil as to Jackson, the incumbent. The demandant then sued out an alias quare impedit returnable on the 15th of April, 1834, upon which Jackson was summoned and appeared. The declaration against all the defendants was delivered on the 10th of January, 1835. Bere obtained a rule to set aside the proceedings for irregularity, upon the 4, apply only to ground that the demandant was bound to declare within one year from the return day of the first writ of quare impedit. Coleridge, Serjt., shewed cause, and contended that the rule which had been established, requiring a plaintiff to declare within one year from the return day of the process, did not apply to real actions. Here the demandant was unable to summon the incumbent, and admitting that the declaration is too late as to the other defendants, the demandant is still entitled to proceed against the incumbent. The interests of the bishop, the patron, and the incumbent, are are quite separate and distinct, and the proceedings might have been originally taken against one. Wilde, Serjt., Bompas, Serjt., and Bere, contrà.-The Books lay down no express rule as to the time to declare in real actions, but they plainly shew that originally, real and personal actions were considered in the same point of view. It is clear that in personal actions the plaintiff is bound to declare within one year from the return of the writ, Orley v. Lee (a); and in this Court he must declare before the end of the second term, Sykes v. Bauwens (b). In joint actions, the plaintiff may obtain further time to declare against all the defendants, in case one of them cannot be served with process. -[Tindal, C. J.-That is where there is one judgment against all the (a) 2 Term Rep. 112. (b) 2 Bos. & Pul. N. R. 404. actions over which the courts of common law have a concur. rent jurisdiction, and there fore Reg. 35 does not apply to a quare im pedit. Com. Pleas. BARNES V. JACKSON. defendants. Here the proceedings are in the nature of separate actions TINDAL, C. J.—This rule calls upon the plaintiff to shew cause why the declaration against the defendants should not be set aside for irregularity, on the ground that the writ of quare impedit, upon which two of the defendants had been duly summoned, and had appeared, had been returnable for more than a year before the declaration was delivered. The writ of quare impedit, upon which two of the defendants were summoned, was returnable on the 8th of January, 1834, and the defendants appeared thereto on the 11th of January, 1834, and the sheriff having returned nihil as to the third defendant, Jackson, the incumbent, an alias quare impedit was issued, returnable on the 15th of April, on which alias writ he was summoned, and appeared. The declaration in quare impedit was not delivered till the 10th of January, 1835. One ground upon which the motion was urged was the new rule of Court of Hilary Term, 2d William the 4th, R. 35; but we think these rules do not extend to real actions, but to those proceedings only in which the common law Courts of Westminster exercise concurrent jurisdiction (c). But the ground principally relied on, is the general rule of law, by which a plaintiff must declare within 12 months after the return of the writ. This is laid down by Mr. Justice Buller, in Orley v. Lee (d), as an acknowledged rule of practice, not that the defendant can sign any judgment of non pros for not declaring, for no such judgment can be signed until after a demand of declaration, but that after the lapse of 12 months from the return of the writ, the delivery of the declaration comes too late. The same rule is admitted in Penny v. Harvey (e), and in Morton v. Bothwick (f). In Cooper v. Nias (g), the question arises whether the twelvemonth is to be calculated from the return day of the writ, or the time of the appearance, and the Court say, "the rule is, that if the plaintiff does not declare within a year after the return day of the writ, he is out of Court. The safest course is to reckon the 12 months from the return day; the time given to put in and perfect bail is merely matter of indulgence." No case appears by which this rule has been shewn to be applied to real actions; but at the same time no distinction is made in the books, between actions real and personal; and the rule in principle applies equally to actions of all kinds; the object being, that suits should not be kept alive an unreasonable time after the parties are in Court; and if the demandant is not bound to declare within one year, there seems to be no reason why he should not be at liberty to do so for an indefinite period. The plaintiff or demandant are not injured by this rule, for if he has any reason for not declaring on account of all the parties not being brought into Court, it is a very constant course to apply for time against those who have not appeared. We therefore think the plaintiff is out of Court as to the two defendants who appeared under the original writ, and that the declaration is irregular as (c) See Miller v. Miller, ante, 31. (d) 2 Term Rep. 112. (e) 3 Term Rep. 123. (f) 9 Barn. & Cres. 544. (g) 3 Barn. & Ald. 271. |