1839. DICKINSON v. EYRE. pursuance of this act, except only the affidavits to be filed, may, together with the declaration in the cause, (if any,) be entered of record, with a note in the margin, expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or order, and every such rule or order so entered, shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments; and in case any costs shall not be paid within fifteen days after notice of the taxation and amount thereof, given to the party ordered to pay the same, his agent, or attorney, execution may issue for the same by fieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry, and of the execution, if by fieri facias; and such writ and writs may bear teste on the day of issuing the same, whether in term or vacation; and the sheriff or other officer executing any such writ shall be entitled to the same fees and no more, as upon any similar writ grounded upon a judgment of the Court." This is the case of a feigned issue directed by the Court. It is stated in the affidavit that no damages were given by the jury, and, therefore, the verdict could not have been entered upon the feigned issue, but should have been entered on a rule of Court; but there is nothing, it is submitted, which can prevent the verdict from being entered up in the usual way. The words of the act merely say that it may be so entered upon the record, they do not say it must be done that way; and that no other way will be sufficient. When the objection was first raised, this was found to be a difficulty, and the Master was applied to, and by his advice, the verdict was entered in the usual form; but further this section says nothing at all about the verdict, and it can be binding for no more of the proceedings than it expressly mentions; it does not seem to have contemplated a case of this sort. The 7th section enacts that all rules, orders, and decisions, together with the de claration, (if any,) may be entered on record, and the chief object of the act seems to be the securing of a regular entry of the proceedings under it; and then it says, these rules, orders, or decisions, &c., entered, are to have the effect of judgments. In this case the jury found a verdict for the plaintiff, and gave him 1s. damages. The Master ordered this to be entered up on the postea, and the judgment was so entered under his direction; nor does the act, which is quite silent as to the mode of entering verdicts, contain anything to prevent the plaintiff' from adopting such a course of proceeding. It is, therefore, submitted, the plaintiff was perfectly in the right course in proceeding to tax his costs, as he did after the matter had been fairly considered by the Master. After the verdict had been obtained, there was an application made that the money might be paid into Court. There was also a further application by Mr. Eyre, as late as February, 1838. One of the issues in the case was found for him, and he personally went before the Master to obtain the costs on that count, which were afterwards deducted from the plaintiff's costs, and the Master gave his allocatur for the balance. There was nothing in the act to prevent its being done. If, however, the defendant thinks, after all this, to set aside the judgment for irregularity, he ought to come here in good time. The application was not made till the 9th of May, 1838, which was the last day but one of Easter Term. There were other proceedings going on in the mean time. Platt, contrà.-The case of Mortimer v. Piggott, (a) decides that we have not lost by delay, what might have been had by applying earlier. There, a prisoner applied for his discharge, and it was objected, among other things, that he had delayed too long to make his application; but (a) Ante, Vol. 2, p. 615. 1839. DICKINSON v. EYRE. 1839. DICKINSON v. EYRE. it was held, that if the writ of execution on which the defendant was detained in custody, was a nullity, the lapse of time would not waive his right to apply for his discharge. Here the objection is, that the proceeding in question was a nullity. The case of Lambirth v. Barrington, (a) is an authority that proceedings under the interpleader act, cannot be entered upon, otherwise than is pointed out by the 7th section of that act. The contrary has been done in this case; that is an objection which, according to the cases cited, this Court will consider fatal. This rule must be made absolute. LORD DENMAN, C. J.-This section obviously applies to all the proceedings under this act. The distinction contended for with regard to judgment after a verdict cannot be made out. It must be entered on the record in the same manner, as other proceedings under this act. After this is done, they are of record, and are assimilated in every way to proceedings in the ordinary form. They have the force of judgments, and writs of execution may issue on them. That course has not been adopted in this case. As the proceedings have not been entered in compliance with the act, the judgment must be set aside, and this rule be made absolute. (a) Ante, Vol. 4, p. 126. Rule absolute. Sue Commerte r: Branchent 21. LJ. Q.B.137. 1839. HARVEY V. O'MEARA. Suspicion merely that a defendant is about to leave England, is not a sufficient order for his tion, pursuant to 1 & 2 Vict. & 7. Where an action for the KELLY shewed cause against a rule nisi, obtained by During that time the proceedings to outlawry commenced and termi- bailable commenced & 2 Vict. c. 110, and an outlawry com pleted, during the absence of the defendant before the statute; on into operation, capias utlaga- of the aside the out Now, (a) See a similar application by the same defendant, ante, p. 657. mon appear- ing costs, a capias utlagatum is custody on mesne process, and the reversal of an outlawry is the reversal of an interlocutory judgment. VOL. VII. BBB D. P. C. 1839. HARVEY v. O'MEARA. would only be entitled to his discharge on putting in bail. Then a question would arise, whether the recognizance of the bail would be in the alternative, either to surrender the defendant, or to pay the condemnation money? Before the passing of that act, he could not have been discharged at all without putting in bail. That act, however, it was submitted, made no difference in the practice. No difference could be considered as having been effected, either by the terms or the equity of the act. It was quite clear the case was not within the terms of the act. With respect to the equity of it, it was to be observed, that if the defendant had come forward at an earlier period, the plaintiff would have obtained judgment. Therefore, this application, which was to the equity of the Court, he could not be allowed to make without putting in bail to the action. If, however, the Court did not take that view of the application, then the facts disclosed on the face of the affidavits were sufficient to support an original application, under the 3rd and 7th section of the statute to hold the defendant to special bail, or direct his detention. Under any circumstances, therefore, he was not entitled to be discharged. It was suggested, on the other side, that the proceedings to outlawry were irregular in some points. If so, the defendant should have come promptly to the Court, in order to set them aside. As he had not done so, such an objection was not now available to him. Bailable process had been issued in 1832, for the sum of 500l., a bonâ fide debt due to the plaintiff; and for several years the defendant was avoiding the execution of this process. In 1836, it appeared from the affidavits, that the defendant was aware of the proceedings to outlawry. He was, therefore, bound to come sooner to the Court, in order to set aside those proceedings, if there was any real ground for so doing. The case of Lewis v. Davison (a) was precisely in point. The marginal note to (a) 1 C., M. & R. 655 |