The structed him not to arrest the plaintiff, and that the de- VOL. I. U N. P. 1844. TEBBUTT v. HOLT. 1844. TEBBUTT v. HOLT. get the debt for his client from some of these persons besides Frazer. Still, by this primâ facie evidence of malice, Mr. Holt is called on to give some explanation, but he does not appear to give any that is very satisfactory. His counsel certainly has suggested that the note was not paid when due, and that it was a fraud upon him. Now, if the parties to this note had represented themselves to be solvent, when, in fact, they were not so; or if any other fraud had been committed on Mr. Holt, on the giving of this note, that would entitle him to a verdict; but there is no evidence of this, except the mere fact, that the note is not paid when due. With respect to the time the plaintiff remained in prison, I ought to tell you that he might have procured his discharge by applying to a judge at chambers immediately after he knew that the defendant had taken this note from Frazer. If the defendant has not satisfactorily explained the matter to you, by shewing you some good reason why he did not countermand this writ, I think that you ought to find for the plaintiff; but if you think that Mr. Holt, when the note was given to him, thought that it was a good note, when, in truth, it was really a fraud on him, you ought to find a verdict for the defendant. Verdict for the plaintiff. Whateley, for the plaintiff, applied to the learned Baron to certify, under the stat. 3 & 4 Vict. c. 24, that the grievance was wilful and malicious (a). E. James, for the defendant.—I hope that your Lordship will allow the defendant to put in an affidavit to shew how the matter really arose. (a) See the case of Foster v. Pointer, 9 C. & P. 718; and the case of Swinton v. Swindell, post. Whateley. I hope that your Lordship will allow me to put in affidavits. PARKE, B.—I decline to certify, and I shall not receive affidavits. Whateley and Petersdorff, for the plaintiff. E. James, for the defendant. [Attornies-J. Humphreys, and W. J. Holt.] 1844. TEBBUTT v. HOLT. Second Sitting at Westminster in Trinity Term, 1844. BEFORE MR. BARON PARKE. WILSON V. MAGNAY, Esq., and Another, Sheriff of Middlesex. CASE against the defendants, as sheriff of Middlesex, for not arresting a person, named Lee, on a writ of capias ad satisfaciendum, sued out against him at the suit of the plaintiff.-Plea, not guilty (a). On the part of the defendants, a sheriff's officer, named Walter, was called. He stated on the voir dire, that he was the officer to whom the warrant on the writ of capias ad satisfaciendum had been granted by the defendants; he stated that he had given the usual bond to the sheriff, but that he had not instructed or employed the attorney for the defendants in this case. Humfrey and Wordsworth, for the plaintiff. He is not (a) There were other pleas, in which no point of law arose. 1844. WILSON v. MAGNAY. a competent witness; he is the real defendant, and he must repay the sheriff every thing that is incurred in this action. Jervis and C. R. Kennedy, for the defendants.-This witness is rendered competent by the stat. 6 & 7 Vict. c. 85, s. 1 (b), which entirely puts an end to the objection that the witness is interested in the event of the suit. (b) By which it is enacted, "That no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer, or person having, by law or by consent of parties, authority to hear, receive, and examine evidence; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence: Provided that this act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plain tiff or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively; provided also, that this act shall not repeal any provision in a certain act passed in the session of Parliament holden in the seventh year of the reign of his late Majesty, and in the first year of the reign of her present Majesty, intituled 'An Act for the Amendment of the Laws with respect to Wills' Provided that in courts of equity any defendant to any cause pending in any such court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions; and that any interest which such defendant so to be examined may have in the matters or any of the matters in question in the cause shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness." Humfrey. The statute does not render competent "any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part." Here the action is substantially defended for the officer. PARKE, B.—I think that he is a competent witness. The witness was examined. Verdict for the plaintiff (c). Humfrey and Wordsworth, for the plaintiff. Jervis and C. R. Kennedy, for the defendants. [Attornies-Hare, and Kilgour & Co.] (c) See the next case. 1844. WILSON V. MAGNAY. COURT OF QUEEN'S BENCH. Sittings at Westminster after Trinity Term, 1844. BEFORE MR. JUSTICE WIGHTMAN. WHEELER v. SENIOR, Esq. CASE against the defendant as the late sheriff of Buckinghamshire, for not arresting John Holland, the elder, on a writ of capias ad satisfaciendum sued out against him at the suit of the plaintiff. June 22. In an action Pleas:-1st, not guilty; 2nd, that the writ was not delivered to the de- a ca. sa., the fendant as sheriff; 3rd, that the defendant could not have taken John Holland, the elder, as in the declaration alleged. On the part of the defendant, John Gibbs, a sheriff's officer, was called. He stated on the voir dire, that he was the officer to whom the warrant had been granted on the writ of ca. sa., and that he had given the usual bond to the sheriff, but that he did not defend the present action. sheriff's officer been granted on mediate and individual behalf" the action is defended, so as to come within the proviso in sect. 1 of the stat. 6 & 7 Vict. c. 85. |