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ARGUED AND ADJUDGED
Court of King's Bench,
DURING THE TIME
LORD MANSFIELD PRESIDED IN THAT COURT.
Michaelmas Term, 30 Geo. II. 1756, to Easter Term.
12 Geo. III. 1772.
IN FIVE VOLUMES.
BY SIR JAMES BURROW, Knight,
LATE MASTER OF THE CROWN-OFFICE, AND ONE OF
OF THE INNER TEMPLE.
THE THIRD EDITION,
WITH THE ADDITION
OF CRITICAL NOTES AND OBSERVATIONS, AND
From Easter Term, 10 Geo. III. 1770, to
[ 2585 )
10 GEO.3. B. R. 1770.
Memorandum---During the last Vacation, several
Alterations happened on the Bench, and at the Bar.
Common Pleas; and Mr. Justice Yates took it.
Mr. AMBLER, one of his Majesty's counsel learned in the law, succeeded Sir William BLACKSTONE, as Solicitor General to the Queen.
Mr. Hussey, having (towards the end of last term) resigned his offices of Attorney General to the Queen, counsel to the Admiralty, and auditor of Greenwich Hospital ; he was succeeded in the first by John Morton, Esq.; of the Inner-Temple, Chief Justice of Chester, in the second, by Francis Cust, Esq. ; of the Middle-Temple, brother to the late Speaker of the House of Commons : and in the third, by EDWARD THurlow, Esq. ; of the Inner-Temple, one of his Majesty's counsel learned in the law.
And RICHARD JACKSON, Esq. ; of the Inner-Temple, was appointed one of his Majesty's counsel learned in the law, and counsel to the Board of Trade, which had been vacant from the death of Sir MATTHEW LAMB to this time.
Mr. Tuvrlow was also appointed his Majesty's Solicitor General, in the room of Mr. DUNNING, who resigned that office. Vol. V.
Mr. Dunning, late Solicitor General, appeared on the outside of the bar, in the common ordinary bar.
Lord MANSFIELD, after Mr. Dunning had made his 2d May 1770. first motion, addressed himself to him, and declared, that (the first Day in consideration of the office he had holden, and his high of this Term.) rank in business, he intended for the future, (and thought
he should thereby injure no gentleman at the bar,) to call
Mr. Caldecott and Mr. Coxe, the two senior utter-
cannot be taken advan
Monday 7th HART, Assignee of the Sheriff of Cornwall, versus Wes. May 1770.
TON, Esq. ; Idem versus Hingeston.
(S.C. 2 BI. 683.) NHIS was an action of debt upon a bail-bond, brought Matter of form THIS was an action of debt
by the plaintiff as assignee of the Sheriff of Corn
wall. The plaintiff declared that after the first day of tage of upon a general demiur.
Trinity Term 1706, viz. on the 23d day of February rer, but should 1769, the plaintiff prosecuted out of the Court of our be assigned
Lord the King before the King himself at IFestminster, as termed.
a writ of latitat directed to the Sheriff of Cornwall; and so proceeded, and set out the writ, the delivery of it to the Sheriff, the warrant, the arrest, the giving the bail. bond by the defendants, and the assignment of it to the plaintiff. The defendant pleaded « Nil debet” the plaintiff demurred to his plea.
Mr. MANSFIELD, on behalf of the defendants, objected to this writ, it being stated by the declaration to have been sued out of this Court, then sitting, on the 23d of February; which is impossible: for, the Court could not sit out of term.
He cited the case of Estwick, assignee of the Sheriff of Middleser, v. Cooke, in 2 d. Raym. 1557, and Fitz. Gib. 66. 6. C. which he said was precisely in point. That was (as this is,) an action of debt upon a bail. bond ; the plaintiff declared with a videlicet " on the 18th of July,” which was after Trinity Term : and it was agreed to be bad.
Mr. Ashhurst, on behalf of the plaintiff, said, this objection being matter of form, it cannot be taken advantage of upon a general demuerer: it ought to have been assigned as cause, upon a special demurrer.
1770. Besides, it is only an irregularity: it might have been wared by an appearance.
HART Therefore the bail shall not take advantage of it.
By the practice of the Court, a writ may be sued out in vacation; though it must bear teste within the term.
In the case of Johnson and another, Assignees v. • V. ante, Smith, widow, a latitat issued in vacation : and it was vol, 2. p. 950. holden “ that the teste of a latitat is not conclusive as to “ the time of suing it ont:" and here it is alledged as a fact, “ that the writ did issue in the vacation.”
He disputed the case in 2 Ld. Raym. and Fits. Gibbon, and observed that the time of suing it out appeared only under a videlicet.
Mr. MANSFIELD alledged that case to be directly in point.
This writ issuing in vacation, and described and set forth as tested in vacation, is void; and consequently, all that followed upon it. It must be taken to issue, when it was tested; unless something in particular is introduced into the record.
Lord MANSFIELD- We'll look into the case in (See 6 Durn, Lord Raymond. It was then the prevailing opinion, 73. 3 Durn. 6 that it could not be averred that the writ issued on a
184.] 5 day different from the teste of it."
CUR ADVIS. His LORDSHIP now declared the opinion of the Court ; having first stated the pleadings and the case of Estwick v. Cooke, cited by Mr. MANSFIELD. He then proceeded as follows
We were inclined to over-rule that case, if the present case had been more like it, than it is.
But the present case does not say when the writ bears date : it does not mention the teste of it at all.
The case cited had these further words—“ eadem Cu. [ 2588 ] "ria apud Westmonasterium" udlunc tentá existente." The defendant demurred to the declaration; and it was held ill; because it was not according to the truth of the fact : for, it could not, on the 18th of July, be sued out of the Court of King's Bench then sitting at Westminster. This is the ground of the opinion of the Court.
Mr. Reeve, who was counsel for the plaintiff in that case, cited a strong case
* Walburgh v.
may 66 be sued out in vacation-time."
But the Court took it T. Jmes 149.
Sultonstal, Sir and said that the writ could not be sued out of the 1 Ventr. 562. “ Court of King's Bench then sitting at Westminster, V. unte, vol. 2 6 when the Court did not, nor could sit out of term."
The present case does not say a word about the teste : it only alledges “ that the plaintiff prosecuted the writ " on the 23d of February.' And the truth of the fact