poena in this cause, whereupon he returned and stated the fact to the directors, who thereupon passed a resolution whereby Messrs. Hill and Heald were directed to enter an appearance for all the directors, and defend the suit for the company. Oliviera was not present at that meeting, but it was stated in the affidavit that the majority of the directors could at any meeting bind the minority in all acts relating to the company. Robinson, by his affidavit, stated that Oliviera was in Paris. The case of Hobhouse v. Courtnay (12 Sim. 140) was cited in support of the motion. The VICE-CHANCELLOR.-I cannot make the order asked for; a solicitor for general business is not solicitor for every suit which may be instituted against a client; this is a mere co-partnership, and must be treated as such: the parties are here attacked by a stranger; a general power to manage a co-partnership is not sufficient to do away with the necessity of serving each party personally. Hetherington then moved, in the same cause, for leave to serve a subpoena upon Fowler, another defendant, in the manner directed by the 31st Order of May 1845, whereby in case it appears to the Court by sufficient evidence that any defendant, against whom a subpoena to appear to, or to appear to and answer a bill, has issued, has been within the jurisdiction of the Court, at some time not more than two years before the subpoena was issued, and that such defendant is beyond the seas; or that, upon inquiry at his usual place of abode (if he had any), or at any other place or places where at the time when the subpoena was issued he might probably have been met with, he could not be found, so as to be served with process, and that in either case there is just ground to believe that such defendant is gone out of the realm or otherwise absconded to avoid being served such process, then and in such case the Court may order that such defendant do appear at a certain day to be named in the order, and a copy of such order, together with a notice thereof, to the effect set forth at the foot of the order, may, within fourteen days after such order made, be inserted in the London Gazette, or be otherwise published as the Court shall direct. The affidavit stated that the plaintiff had called at defendant's house in Manchester-square, London, to serve him with a subpoena, when he was told by the servant who opened the door that Fowler was not at home, and that he could not say when he would be at home; whereupon plaintiff returned without leaving the subpoena, and called again some days after at Fowler's house to serve him, when the person who opened the door informed plaintiff that Fowler had gone away, and that the house was to be let, which was apparent from bills being upon the windows to that effect; and when plaintiff inquired where Fowler was to be found, he was told by the servant that he could not exactly say, for that he had sent a deed to him at Ostend which required his signature, and it had not been returned. An affidavit by Waddy stated that Fowler was staying out of the way at Ostend. The VICE-CHANCELLOR. These proceedings should be bona fide; you might have served the party the first time you called, as service then upon the servant would have been sufficient; you missed your opportunity, and delayed effecting a service until you are able to proceed under this order; I shall make the order, directing publication at Ostend, as well as in The Gazette, for this is a case in which the party ought to be compelled to find out where the defendant is, as he lost his opportunity when he might have effected personal service; but in this case, as there is a company there are other persons who have a.common interest with the defendant, and who appear, I make the order that the defendant do appear in 14 days after publication of the notice, and that such notice be published within 14 days from the date of this order. Common Law Courts. Bill of particulars-Architect's commission. In this case, which was tried at Westminster at the sittings after Michaelmas Term, the plaintiff claimed the sum of 5111. 3s. as the balance due to him for work and labour as an architect. The bill of particulars set forth the work which the plaintiff had done, and the estimated expenditure for the buildings of which he had superintended the erection, and distinctly claimed five per cent. commission thereon, as the proper and customary reward of such professional services. Proof having been given of the sum on which the commission would be chargeable if the plaintiff was entitled to charge it, it was insisted by the plaintiff's counsel that he was entitled to charge five per cent commission, according to the custom of the profession. LORD DENMAN, C. J. said that such a claim could only be established by proof of an express contract to pay such a commission. The plaintiff's counsel then proposed to call witnesses to shew the value of the work. LORD DENMAN, C. J. permitted him to do so, saying that, although the particulars claimed a commission on the amount expended, it was open to the plaintiff to prove the value of his services, for that the statement of the services was the essential portion of the list of particulars, and all that was said about the commission was an unnecessary specification of the mode in which it was proposed to calculate the value of the work and labour. Ultimately the jury gave a verdict for the plaintiff for the amount to which he would have been entitled had there been an express contract to pay him five per cent. commission; but expressly rejected a finding of that amount as commission. The Attorney-General now moved for a new trial, on the ground of misdirection, and on an affidavit of the attorney for the defendant, complaining of surprise, and stating that he could have shewn a less sum to be due, had he not thought that the plaintiff was confined to proof of his right to commission. He cited Davenport v. Davis (M. & W. 507); Roberts v. Elsworth (10 M. & W. 653); Breckon v. Smith (2 A. & E. 488). JUDGMENT. COURT OF COMMON PLEAS, aforesaid, a certain action was commenced by the plaintiff against the defendant and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, in her Majesty's Court of Exchequer at Westminster, for the recovery of the said debt in the said condition mentioned, together with such costs of the plaintiff as should be given in the same. The declaration then set forth a judgment recovered in such action, against the defendant and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, for the sum of 1,6981. 5s. being 1,650l. for debt, 337. 11s. 6d. for interest, and 147. 13s. 6d. for costs; and the declaration alleged that the defendant and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, did not, nor did any or either of them, or any or either of their heirs, executors, or administrators, nor did the said James Oxley Bridges and Joseph Arthur Ballantine, or either of them, or any or either of their heirs, executors, or administrators, at any time before the commencement of this suit pay, or cause to be paid to the plaintiff, the said sum of 1,698l. 5s. so recovered as aforesaid, or any part thereof, according to the form and effect of the condition of the said writing obligatory. And the plaintiff further saith, that LORD DENMAN, C.J.-We have looked to the bill afterwards, and after the recovery of the said judg of particulars, which was delivered by the plaintiff in ment in the said action by and at the suit of the this case; we have also looked to the affidavit of the plaintiff against the defendant, and the said Daniel defendant's attorney, and we think there is no ground Wade Acraman, Alfred John Acraman, Thomas Holfor a new trial; although the particulars are men-royd, and William Morgan, in the said Court of Extioned in the commission as to the mode of estimat- chequer, to wit, on the 19th day of August, 1842, a ing the services which the plaintiff puts forth, yet we certain order was duly made in the last-mentioned do not think that could be reasonably supposed to cause, on the application of the plaintiff, by the Hobind him in his decision. We think they did not nourable Sir John Taylor Coleridge, knignt, one of the bind him as to that mode of calculation, and that he justices of the Court of Queen's Bench, by which order was at liberty to shew the value of his services, and the said Sir John Taylor Coleridge, so being such he did so; we think, therefore, there is no ground for justice as aforesaid, ordered that the defendant and a new trial. the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan should surrender themselves to the custody of the marshal of the Queen's prison within ten days after service of a copy of that order on the defendant, and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, and on the said James Oxley Bridges and Joseph Arthur Ballantine, a copy of which order of the said Sir John Taylor Coleridge, so being such justice as aforesaid, was afterwards, to wit, on the 20th day of August, 1842, duly served on the defendant and the said Alfred John Acraman, Thomas Holroyd, and William Morgan, and the said James Oxley Bridges and Joseph Arthur Ballantine, and a copy of which order was afterwards, to wit, on the 23rd day of August, 1842, duly served on the said Daniel Wade Acraman. And the plaintiff further saith, that ten days after service of a copy of the said order on the defendant, and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, and the said James Oxley Bridges and Joseph Arthur Ballantine had, before the commencement of the suit, long elapsed. And the plaintiff further saith, that afterwards, and after the recovery of the said judgment, to wit, &c. the Honourable Sir Cresswell Cresswell, knt. one of the Justices of the Court of Common Pleas at Westminster, did make a certain other order in the said last mentioned cause, by which last mentioned order the said Sir Cresswell Cresswell, so being such justice as aforesaid, did order that the time for the defendant and the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, to render in that cause should be enlarged for a week, and that the further hearing of a certain Debt on a bond for 2,7001. entered into by the de- summons to set aside the said order of the Honourfendant and his partners in trade, Daniel Wadeable Mr. Justice Coleridge, for the defendant and the Acraman, Alfred John Acraman, Thomas Holroyd, said Daniel Wade Acraman, Alfred John Acraman, and William Morgan, together with James Oxley Thomas Holroyd, and William Morgan, to render, Bridges and Joseph Arthur Ballantine, as sureties, should be adjourned until the 2nd day of September, under and pursuant to the statute 1 & 2 Vict. c. 110, A.D. 1842. And the plaintiff further saith, that on subject to a condition, which was declared to be that the 2nd day of September, A.D. 1842, a certain other if the defendant, and the said Daniel Wade Acra- order was made in the last mentioned action by the man, Alfred John Acraman, Thomas Holroyd, and said Sir Cresswell Cresswell, so being such justice as William Morgan, James Oxley Bridges, and Joseph aforesaid, by which last mentioned order the said Sir Arthur Ballantine, or any or either of them, their, or Cresswell Cresswell did order that the time for surren his heirs, executors, or administrators, should well dering the defendant, and the said Daniel Wade and truly pay, or cause to be paid to the plaintiff, his Acraman, Alfred John Acraman, Thomas Holroyd, executors, administrators, or assigns, such sum or and William Morgan, should be enlarged until the sums as should be recovered in any action or actions fifth day of the then next Michaelmas term, without which then had been or thereafter should be brought prejudice to the right of the bondsmen to render the for recovery of the said alleged debt, together with defendant and the said Daniel Wade Acraman, Alsuch costs as should be given in the same; or if the fred John Acraman, Thomas Holroyd, and William defendant and the said Daniel Wade Acraman, Alfred Morgan, in the meantime, or to the right of the said John Acraman, Thomas Holroyd, and William Mor- plaintiff to treat the bond as forfeited. And the plaingan should render themselves to the custody of the tiff further saith, that afterwards, and after the recogaoler of the court in which such action or actions very of the said judgment, to wit, on the 4th day of had been or might be brought, according to the November, in Michaelmas Term, A.D. 1842, a cerpractice of such court or courts, or within such time tain rule was made by the Court of our Lady the and such manner as the said court or courts, or any Queen, before the Barons of her Exchequer, in thesaid judge thereof respectively, should direct after judg- last-mentioned action, by which rule it was ordered that ment should have been recovered in such action or the plaintiff should shew cause on Wednesday, the 9th actions, then the said writing obligatory to be void day of November, then instant, why thesaid order of the and of no effect, otherwise to be and remain in full said Mr. Justice Coleridge, and all proceedings thereforce and virtue, &c. upon had, should not be set aside with costs to be paid by the plaintiff, together with the costs of the proceedings before Mr. Justice Cresswell in relation to the said order, being the proceedings hereinbefore Nov. 14 and Dec. 23, 1845. HINTON v. ACRAMAN. Declaration on a bond given by the defendant, a trader, with sureties, under stat. 1 & 2 Vict. c. 110, s. 8, to pay such sum as the plaintiff should recover, in any action brought or to be brought, or to render, stated a judge's order for the defendant to render within a time certain, and two other judge's orders, enlarging such time, and a rule nisi in the Court of Exchequer for further time to render, and alleged as a breach that the defendant did not render according to the practice of the Court, or within the time mentioned in the judge's orders. Held, 1st, to be a good plea thereto that no writ of ca. sa. was sued out; 2nd, to be a bad plea that the first of such judge's orders was made before the time for rendering had expired, and was made ex parte; 3rd, that a plea that the rule nisi in the Exchequer was obtained before the expiration of the enlarged time, and that afterwards, on shewing cause, the Court of Exchequer directed the defendant to have further time to render, and that within such further time the defendant did render, was a good plea; 4th, that a certificate in bankruptcy, obtained after recovery of judgment, in the action brought for the original debt, but under a fiat issued before such judgment, was no bar of the debt on the bond; and, 5th, that the pendency of an action for the recovery of the debt commenced before giving the bond was a bad plea, as the bond was not given only for a sum to be recovered in an action already brought. The declaration then alleged that afterwards, and after the making of the writing obligatory and condition, to wit, on the 15th day of July, in the year in that behalf mentioned, and of that application, or why the defendants, thereby meaning the defendants in the said last-mentioned action, should not have a fortnight after judgment pronounced on that rule, or such other time as the court should order in that behalf, to render themselves into custody as to the said last-mentioned action in discharge of their bail, and why all proceedings upon the bond should not be set aside with costs, and that in the meantime all proceedings in the last-mentioned cause, and against the defendant's bail, should be stayed upon notice of that rule to be given to the plaintiff, his attorney, or agent. And the plaintiff further saith, that neither the now defendant, nor the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, nor any nor either of them, rendered themselves or himself to the custody of the gaoler of the said Court of Exchequer, according to the practice of the same Court, or within the time mentioned in the said orders, or any or either of them after judgment had been so recovered as aforesaid, or within any other time or in any manner lawfully directed by the same court or any judge thereof, after judgment had been so recovered as aforesaid, according to the form and effect of the said condition of the said writing obligatory, but wholly neglected, omitted, and refused so to do, and the condition of the writing obligatory is and remains wholly unperformed contrary to the form and effect of the said writing obligatory, and of the said condition thereof. or sureties, James Oxley Bridges and Joseph Arthur spect differs from a recognizance of bail. The Courts moreover have put a particular construction on the condition of the recognizance, and have said that it creates only a qualified obligation to render in discharge of bail when the plaintiff has, by suing out the ca. sa. given notice to the bail that he requires such render to be made, and therefore as the ca. sa. arises out of the obligation itself, and is not merely a matter required by the practice of the Court, the not suing out a ca. sa. is a good plea to an action upon a recognizance of bail. This distinctly appears in Sandon v. Proctor (7 B. & C. 800), which is an express authority that a mere matter of practice cannot be pleaded, and that it was bad, therefore, to plead that the ca. sa. did not lie in the sheriff's office four days exclusive of the day it was lodged and the return day. Cherry v. Powell (i D. & R. 50) is to the same effect. The present is an action on a bond given by the stat. 1 & 2 Vict. c. 110, s. 8. The bond is to be construed with reference to the terms it employs, and therefore it differs from the recognizance which has had given to it a particular construction by the Sixthly. That, after the making of the said writing Court. The statute says to render "according to obligatory in the declaration mentioned, to wit, on, the practice of such Court, or within such time and in &c. and from thence continually until the issuing of such manner as the said Court or any judge thereof the fiat in bankruptcy thereinafter mentioned, the de- shall direct." The power so given to the Court or fendant, and the said Daniel Wade Aoraman and any judge is evidently different from what they would Alfred John Acraman were dealers, chapmen, and co-ordinarily possess. The legislature did not know partners and traders, according to and within the how the party was to render, there being various true intent and meaning of the statutes concerning things required in practice to be done before the exThe defendant pleaded, secondly, that after the re- bankrupts then in force. The plea afterwards set oneretur on the bail-piece can be entered, and therefore covery of the judgment in the declaration mentioned, forth a fiat and proceedings in bankruptcy, under the mode of rendering is left to the practice of the and before the commencement of this suit, no writ of which the defendant and the said Daniel Wade Acra- Court, hut the necessity of a ca. sa. to call on the capias ad satisfaciendum was sued or prosecuted out man and Alfred John Acraman were adjudged, and defendant to render is not required in the case of this of the said Court of Exchequer against the defendant, became bankrupts, and that, after the recovery of the bond as in the proceedings on a recognizance. It is and the said Daniel Wade Acraman, Alfred John judgment in the declaration mentioned, certificates of plain that this statute contemplated a render being Acraman, Thomas Holroyd, and William Mor- conformity of the defendant and the said Daniel made in a different manner from that pursued under a gan, or any or either of them, upon the said judg-Wade Acraman and Alfred John Acraman were duly recognizance of bail. It would not have been necesment, and returned in the said Court. Verification. signed by the creditors, and afterwards allowed and sary to have said in such time and manner as the Court Fourthly. That the said order so made by the confirmed. The plea then stated that the several or judge shall direct, if it was intended to confer only a said Sir John Taylor Coleridge, as in the decla- events in that plea before mentioned happened and power of extending the time to render, for that might ration mentioned, was made before the time for took place, and the said certificates were obtained, always have been done before in exercise of the rendering the said defendant, the said Daniel Wade allowed, and confirmed, as aforesaid, before the practice of the Court; but this is something different Acraman, Alfred John Acraman, Thomas Holroyd, commencement of this suit, and before the issuing from the practice of the Court. This differs and William Morgan, in the said action so commenced and return of any capias ad satisfaciendum at the from a recognizance, as here the sureties cannot, against them, as in the declaration mentioned, ac- suit of the plaintiff against the said defendant, and after judgment, render so as to discharge themselves. cording to the practice of the said Court of Exchequer the said Daniel Wade Acraman and Alfred John Acra- [MAULE, J. referred to Owston v. Coates (10 Ad. & had expired or elapsed, and that the said order was man, or any or either of them, upon the said judg- E. 193); there no ca. sa. was necessary, but that was made ex parte, on the application of the said plaintiff, ment, and before any render of the defendant and the before judgment.] A judge's order, with notice, is a and without any previous summons of, or any previous said Daniel Wade Acraman and Alfred John Acra- much more important means of giving information notice to, the said defendant, the said Daniel Wade man, or any or either of them, at any time or in any than the lodging of a ca. sa. of which no notice is Acraman, Alfred John Acraman, Thomas Holroyd, manner had been directed or ordered by the said Court given. Next as to the fourth plea. This involves and William Morgan, or any of them, or any agent, of Exchequer or any judge thereof, and before the partly the same question as the last, if the plea means attorney, or solicitor of them or either of them. time for the defendant and the said Daniel Wade that the time made by the order of the judge to render Verification. Acraman and Alfred John Acraman, or any or either of expired before the return of the ca. sa. As to the them, to render themselves or any or either of them order being ex parte, it was for the plaintiff to call to the custody of the gaoler of the said Court of for the render when entitled to do so, which, if no Exchequer, acording to the practice thereof had ca. sa. was required, would be when the judge might elapsed, and before any breach or non-performance of order. If the order, however, was irregularly obthe said condition of the said writing obligatory, or tained, that is not a matter which can be the subject any part thereof. Verification. of a plea. As to the fifth plea. The time to surrender expired on the fifth day of Michaelmas Term. The rule nisi did not extend the time for the surrender, it only called on the plaintiffs to shew cause why the order of Coleridge, J. should not be set aside, or why the defendant should not have such further time as the Court should order to render. If, therefore, the order of Cresswell, J. was broken, the Court of Exchequer had no power to extend the timea right of action had accrued, and there was nothing on which that order could take effect. The seventh plea is, that another action in another court is pending for the identical debt. That is only a plea in abatement, and is bad in bar. The remaining pleas demurred to are the sixth and eighth pleas. These pleas state the certificate to be signed after the recovery of the judgment in the declaration mentioned, but they do not state whether the fiat was or not issued after such judgment; the fiat must be taken, therefore, to have issued before. The original debt was discharged by the certificate; but the plaintiff had also a statutable security, which did not arise until after the judgment, and was not, therefore, barred by this certificate. Jameson v. Campbell (5 B. & Ald. 250), which was on the stat. 4 Geo. 3, c. 33, and the present statute is an extension of the former. Here no right of action existed on the bond until after the bankruptcy, and the debt so created by the bond was, therefore, not discharged by the certificate. Fifthly. That the said order was so made by the said Sir John Taylor Coleridge, as aforesaid, before the time for rendering the said defendant, the said Daniel Wade Acraman, Alfred John Acraman, Thos. Holroyd, and William Morgan, in the said action according to the course and practice of the court in which the same was so brought as aforesaid had Seventhly. That before the making of the said expired or elapsed, and that after the making of the writing obligatory in the declaration mentioned, and said order by the said Sir John Taylor Coleridge, as long before the commencement of the action in the in the said declaration mentioned, and before the said declaration mentioned, to wit, &c. a certain action ten days after the service of the said copy of the said was commenced by the plaintiff against the defendant order, as in the said declaration mentioned, had ex- and the said Daniel Wade Acraman, Alfred John pired or elapsed, the said order stated in the declara- Acraman, Thomas Holroyd, and William Morgan, in tion to have been firstly made by the said Sir C. Cress- her Majesty's Court of Exchequer, at Westminster, well, was made by the said Sir C. Cresswell as in the for the recovery of the same identical debt in the said said declaration mentioned, to wit, on &c. and that condition mentioned, together with such costs of the afterwards and after the making of the said last plaintiff as should be given in the same and the mentioned order, and before the expiration of the time, said action, then and from thence, until and at the to wit, the said week, given and appointed in and by time of the making of the said writing obligatory was the said last-mentioned order for the making of the and from thence hitherto hath been and is still pending said surrender as therein and in the said declaration in the said Court of Exchequer, and the plaintiff could mentioned; the said order stated in the said declara- and might have recovered and may recover in the tion to have been secondly made by the said Sir C. said last-mentioned action the said debt in the said Cresswell, was made by the said Sir C. Cresswell, condition of the said writing obligatory mentioned. then being such justice as aforesaid as in the said And the said defendant further saith, that at the time declaration mentioned, to wit, on &c.; and that after- of the making of the said writing obligatory the said wards and after the making of the said last-men-action in the declaration mentioned had not been comtioned order, and before the fifth day of Michaelmas menced, and the said writing obligatory was then Term in the said last mentioned order, mentioned the meant and intended by the several parties thereto to said rule so made by the said Court of our Lady apply and did apply to the said action so commenced the Queen before the Barons of her Exchequer, by the plaintiff, as in this plea mentioned, and was as in the said declaration mentioned, was made not by the said parties or any of them meant and inby the said Court, to wit, on &c. And the tended to apply, and did not apply, to the said action defendant further saith, that afterwards, and after so commenced, and in which judgment was so obthe making of the said last-mentioned rule by the tained, as in the declaration mentioned. Verification. said Court as aforesaid, and within a reasonable time The eighth plea differed only from the sixth plea for that purpose, to wit, on, &c. notice of the said in setting forth the bankruptcy and certificates of the rule was given to the said plaintiff as in and by the defendant and Daniel Wade Acraman, Alfred John same directed, and according to the course and prac- Acraman, Thomas Holroyd, William Morgan, and tice of the said Court; and that afterwards, in Mi- James Norroway Franklyn, instead of the bankruptcy chaelmas Term, A.D. 1842, to wit, on the 24th day of and certificates of the defendant and Daniel Wade November, in the year aforesaid, cause was shewn Acraman and Alfred John Acraman. against the said rule, and the said rule and matters therein contained were argued and discussed before the Court aforesaid, according to the course and practice of the last-mentioned order; and the said Court did thereupon, by a certain other rule then duly made according to the course and practice thereof, among other things order and direct that the said now defendant, the said Daniel Wade Acraman, Alfred John Acraman, Thomas Holroyd, and William Morgan, and their bail The plaintiff demurred specially to all the above pleas, and the same was argued in last Michaelmas Term by Sir Thomas Wilde (Manning, Serjt. with him), for the plaintiff.-The first question arises upon the second plea. The defendant says that the bond declared on was not forfeited unless a writ of capias ad satisfaciendum was issued; but that is not so; this bond is not a proceeding in the cause, and in that re Talfourd, Serjt. (Keating and Dowdeswell with him), contra.-In the first place, it is submitted that no right of action accrued on the bond until a writ of ca. sa. had been returned non est inventus; in the next place, that no such action accrued until the expiration of the utmost time given by the Court of Exchequer to render in, and that the ex parte order of a judge can only extend, but not limit the time for rendering, according to the practice of the Court. Thirdly, supposing Mr. Justice Coleridge had the jurisdiction to make the order he made, Mr. Justice Cresswell and the Court of Exchequer had power to enlarge the time for rendering, and that this Court cannot review the power of the Exchequer to make the order it made as being a matter relating to the practice of the Court; also that as the action on the bond in the Court of Exchequer is pending, there has been no are, Sir Thomas Wilde replied, citing Hayward v. Heffer (5 Q. B. 398); Donelly v. Dunn (1 B. & P. 448); and Attwood v. Partridge (12 Moore, 431). forfeiture of this bond; and, lastly, that the certificate had then elapsed before the commencement of the according to the practice of the Court, had exwas a good discharge, supposing the bond to be for- suit. The declaration further states that on the 26th pired, and was made ex parte without any previous feited. With respect to the first, the legislature intended of August, Cresswell, J. made an order by which it summons. The plaintiff has demurred thereto, and to assimilate the proceeding in the bond to those on was ordered that the time for the defendant and his we think this plea is bad. It seems to be pleaded to the recognizance of bail, for which it is a substitute, partners to surrender should be enlarged for a week, the order of Mr. Justice Coleridge on two grounds; the object being to create an act of bankruptcy instead and that the further hearing of a summons to set first, because the time for rendering had not elapsed of remaining the twenty-one days in prison, as given aside the order of Coleridge, J. should be adjourned when the order was made; but it was quite conunder the stat. 6 Geo. 4, c. 16. The same construction to the 2nd of September, 1842. The declaration sistent with the plea that the time for rendering should, therefore, be put on this bond as had been on further states that on the 2nd of September, 1842, would have expired before the time limited by the the recognizance, the terms of the condition in this an order was made by Cresswell, J. by which it was order for the defendant and his partners to render, bond being the same. The terms of the recognizance ordered that the time for surrendering should be en- and if any order was made which operates to extend differed in this court from those of the recognizances larged to the 5th day of Michaelmas Term, without the time for rendering, such an order ought to be in the Queen's Bench, but still the ca. sa. was re- prejudice to the right of the bondsmen to render the made before the time has expired for rendering. The quired to be issued. (South at the suit of Griffith, defendant and his partners, or to the right of the second ground of objection is, that the order was Cro. Car. 345). The construction put on the word plaintiff to treat the bond as forfeited. The declara- made ex parte without a summons. It appears there "render" in Weddall v. The Mancaptors of Jocar (10 tion further states, that afterwards, and after the was time to rectify any defect in the order, if any Mod. 267), and Wilmore v. Clerk (1 Lord Raym. recovery of the said judgment, to wit, on the 4th day existed, by application to the Court to set aside the 156), and other authorities, shew that as a matter of Nov. in Michaelmas Term, by a rule of the Court order, and until it is set aside the order cannot be of right the bail are not bound to render the prin- of Exchequer, a rule was made in the said last-men- treated as a nullity. There is also a further objection cipal until the return of the ca. sa. and the same tioned action, by which it was ordered that the plain- to the plea, that if the order of Mr. Justice Coleridge might be pleaded in bar. The recognizance is a bond tiff should shew cause, on Wednesday, the 9th day of left the defendant without any justifiable cause in the of record, and there is no reason why that should be Nov. why the order of Coleridge, J. and the proceed-plea for not surrendering pursuant to the practice of differently construed than a bond given by a statute.ings had thereon should not be set aside, with costs the Court on Mr. Justice Cresswell's order, the It is submitted that Mr. Justice Coleridge had no to be paid by the plaintiff, together with the costs of plaintiff would be entitled to succeed on this dejurisdiction to render the order to be made, as a judge the proceeding before Cresswell, J. in relation to the murrer. The defendant has further pleaded, fifthly, has not the power to limit the time for the render, said order; or why the defendants in the said last- that the order of Mr. Justice Coleridge was made and still less to made the order ex parte. As to the mentioned action should not have a fortnight after before the time for rendering the defendant and his fifth plea, the rule and order of the Court of Exche- judgment pronounced in that rule, or such other time copartners had expired, and before the expiration of quer being made according to the practice of that as the Court should order in that behalf, to render the ten days hefore the service of the order of Mr. Court, this Court will not inquire into its propriety themselves into custody as to the said last-men- Justice Coleridge, the first order of Mr. Justice even in a Court of Error it will not. (Mellish v. tioned action in discharge of their bail, and why Cresswell was made; and before the expiration of the Richardson (1 Clarke & Fin. 224). With respect to all proceedings on the bond should not be set aside, time mentioned in the last order, the second order of the seventh plea, it is submitted that the bond did with costs, and that in the meantime all proceedings Mr. Justice Cresswell was made; and before the 5th not apply to any number of actions that the plaintiff in such last-mentioned cause against the defendant day of Michaelmas Term, the rule of the Court of might think proper to bring. The words in the Act should be stayed. The declaration further states that Exchequer in the declaration mentioned was made; "in any action which shall have been brought," neither the defendant nor his partners, nor any or and that before the making of the said last-mentioned and therefore the bond is not forfeited unless the either of them, rendered themselves to the custody of rule, and within a reasonable time of the former plaintiff recover in that action; and since there is an the gaoler of the Court of Exchequer, according to the notice of the said rule was given by the plaintiff as action on the bond now pending, there is not a for- practice of the said Court, or within the time men- by the Court directed, and according to the practice feiture, and the plea is good in bar. Lastly, as to the tioned in such orders, or any or either of them, after of the Court; and that afterwards cause was shewn sixth and eighth pleas. The claim is barred by the judgment had been so recovered as aforesaid, or within according to the practice of the Court, and thereupon certificate. Jameson v. Campbell was before the any other time, or in any manner lawfully directed by the Court did, on the rule and according to the prac 6 Geo. 4, c. 16, and the law has been altered since the said Court, or any judge thereof, after judgment tice of the said Court, order and direct the defendant that case. This, it is submitted, is a contingent had been so recovered, as aforesaid, according to the and his partners and their bail and sureties, within ten debt, and might have been proved under the fiat. form and effect of the said condition. To this decla- days from the day of the making the said rule, to renThe case of Dinsdale v. Eames (2 Brod. & Bing. 8) ration the defendant pleaded, secondly, that after the der the defendant and his partners; and that within is in favour of this view, and is supported by the case recovery of the judgment, and before the commence- the time so limited the defendant and his partners of Littlewood v. Crowther (3 D. & R. 533), which ment of this suit, no writ of capias ad satisfaciendum was rendered themselves to the custody of the gaoler of takes away the ground on which Jameson v. Camp-sued or prosecuted out of the Court of Exchequer against the court. The plaintiff demurred to this plea, on the bell was decided-namely, that the surety might have the defendant and his partners, or any of them; and ground that the order of Mr. Justice Cresswell only sued the principal to such a bond. the plaintiff having demurred to this plea, the first gave time to render till the fifth day of Michaelmas question in the case is, whether this plea furnishes an Term, and that the rule nisi of the Court did not give answer to the declaration. It has been settled by any extended time for the render; and it was convarious decisions as to a scire facias on which a tended that on the 5th day of Michaelmas Term the recognizance is given, it is a good plea that there condition was broken, and the right of action vested was no writ of capias ad satisfaciendum issued against in the plaintiff. But it appears to us that when the TINDAL, C. J. now delivered the judgment of the the principal. Sandonv. Proctor (7 B. & C. 800); South rule nisi was granted it was competent to the Court, Court. This was an action on a bond entered into v. Griffith (Cro. Charles 345); Weddall v. The Man- under the Act of Parliament, to grant an extended time in pursuance of the statute 1 & 2 Vict. c. 110, s. 8. captors of Jocar (10th Modern); and some others. The to render; and the Court, in granting the rule to The declaration set out the bond and the condition, necessity for the capias ad satisfaciendum did not rest shew cause why the time should not be extended, reby which, after reciting that the plaintiff made an on the mere rule of practice, but was a construction served its jurisdiction entire, and maintained the order affidavit that a debt of 1,6507. was due to him by the put by the Courts on the terms of the recognizance, for the extension of the time in the same state as defendant and his partners, who were traders within as was said in the case of Wilmore v. Clerk (1 Lord when they granted the rule nisi. It seems to us, the bankrupt laws, and further reciting that the Raymond, 156), the condition of the recognizance is, therefore, the defendant is entitled to judgment on plaintiff had on the 23rd and 24th of March, 1843, that if the defendant is condemned in an action in this plea. The sixth plea sets forth a fiat in bankcaused the defendant and his partners to be served which payment is enforced, and do not pay, ruptcy against the defendant, and that the cerwith a copy of the affidavit, and by this required the or render his body as a prisoner, the question tificate of conformity under the fiat issued after the immediate payment of the debt; and further reciting will then be at what time the render ought making of the writing obligatory; but the plea does that James Oxley Bridges and Joseph Arthur Bal- to be? and the law says it ought to be when not allege that the fiat was issued after the recovery lantine had agreed to join the defendant and his part- the plaintiff in the original action has signified of judgment on the action brought for the recovery ners in the said writing obligatory (subject to a con- that he will sue out execution against the bond, which of the original debt. The plea not stating the fiat to dition for making the same void), as sureties for the he does by suing out the capias ad satisfaciendum. have been issued after the recovery, in deciding on the -defendant and his partners. The condition was de- But it was contended on the behalf of the plaintiff, validity of the plea, it must be assumed it issued before clared to be, if the defendant or his partners, or the that although the rule was established with reference the recovery. The original debt in this case is undoubtsaid Bridges and Ballantine, or any or either of them, to the recognizances of bail, it ought not to apply to edly barred; but it will not follow, as a consequence, should pay such sum as should be recovered in any a bond under the statute 1 & 2 Vict. c. 110, that the that the bond given to secure the payment of the debt action which should be brought for the recovery of recognizance of bail was an instrument peculiarly will be also barred, for which the case of Jameson the said debt; or if the defendant and his partners under the control of the Courts, which have put a v. Campbell (5 B. & Ald.) is in point. We must should render themselves to the custody of the gaoler particular construction on it, not entirely consistent look, therefore, to the provisions of the statute, 6 of the Court in which such action had been or might with the natural import of its terms. But even if Geo. 4. to determine this point. The certificate is, have been brought, according to the practice of such this were admitted to be so, still such is the esta- by section 126 of that Act, a bar to all debts and Court or Courts, and in such time and in such manner blished construction of the recognizance, and as the demands that may be proveable under the fiat against as the said Court or Courts, or any judge thereof re-bond, as directed to be given under the statute of the bankrupt. The question will be whether this spectively, should direct, after such judgment should Victoria, is clearly made, if not in analogy with, yet bond is proveable under the fiat. The only sections have been recovered in any action or actions, then the nearly in the terms of, the recognizance of bail, and under which it can be so are the 51st and the 56th. said writing obligatory was to be void. The decla- as the terms of the latter have obtained a judicial By the 51st section, persons who have given credit to ration then stated that, after the making the said signification, we see no reason to doubt that the the bankrupt for any money, or other matter or writing obligatory, an action was commenced by the words of the bond were intended to bear the thing, that shall not have become payable when the plaintiff against the defendant and his partners in the same sense; nor are the words which follow, "ac- bankrupt committed the act of bankruptcy, whether Court of Exchequer, in which the sum of 1,6981. 5s. cording to the practice of the Court," so im- such credit shall have been given, on any bill, bond, had been adjudged to the plaintiff for the damages material as they were represented by the plaintiff's note, or other negotiable security or not, shall be enand costs; to wit, the sum of 1,6501. as the debt in counsel, for although the necessity for issuing of titled to prove such bill, bond, note, &c. as if the same the declaration mentioned, 331. 11s. 6d. for interest, the writ of capias ad satisfaciendum is not strictly was payable presently, and receive dividends equally and 147. 13s. 6d. costs of the suit, of all which the speaking a mere matter of practice, but is required with the other creditors, deducting only the usual rate defendant had notice. The declaration further by the rule of law, yet the render made on the of interest, to be calculated from the declaration of states that neither the defendant, nor his part-issuing of such a writ may be within the descrip- the dividend to the time when such debt would have ners, nor his sureties, paid the sum recovered, tion of a render to the custody of the gaoler of the become payable. This section, as far as relates to or any part of it. Further, it states that, after Court according to the practice of the Court. The bonds, is to the same effect, and nearly in the same the recovery of the said judgment by the plain-words quite obviously refer to some recognised course terms as the statute, 1 Geo. 1, c. 11, s. 1, by which tiff, Coleridge, J. made an order by which it was of practice, though it is not easy to say what practice bonds, though not presently payable, were admitted ordered that the defendant and his partners should they relate to or intend to refer to, or whether they to be proved, and it has been decided on the conrender themselves to the custody of the marshal of actually limit it to the recognizance of bail. We struction of that Act that a bond conditioned for the the Queen's prison within ten days after service of a payment of money on the happening of an event before copy of the order; a copy whereof was afterwards, to the happening of that event could not. This appears wit, on the 23rd of August, served on the defendant by ex parte Barker (9 Ves.) It seems to us that the and his partners, and that ten days after such service rule must apply to the 51st sect. Geo. 4, c. 16. In JUDGMENT. Cur. adv. vult. therefore think this plea is an answer to the action. Tuesday, March 31. (Before Mr. Commissioner FANE.) sonable prospect of being able to pay it, notwithstanding there was no evidence before the Commissioner that the original debt had been improperly contracted. Samuel Parker, resident in Gloucestershire, was summoned to this court under 8 & 9 Vict. c. 127, on the application of Richard Reynolds, a creditor, for 321. 15s. 6d. by force of a judgment obtained in the Court of Exchequer of Pleas. The debt amounted to 157. and the taxed costs (a trial having taken place before the sheriff of the county, in consequence of the defendant's pleading the general issue) to 177. 15s. 6d. Wilkes, solicitor, of Gloucester, appeared on the part of the summoning creditor, and examined the debtor, who admitted that after he had been served with the notice of declaration in the action, he took it to an attorney, and instructed him to plead, telling Where two fials have already issued against a bankrupt, him, at the time, he thought the creditor could not and 15s. in the pound have not been paid under the prove the debt plain against him; that at this time second, and where the act of bankruptcy upon which he knew perfectly well he owed the whole of the the third fiat is founded is the filing of the bankrupt's money, and that he had no means whatever of paying own declaration of insolvency, the Court has still the the costs which might be incurred in consequence of power of granting the certificate, if the bankrupt, his pleading, if the creditor proceeded and obtained upon the facts of the case, appear to deserve it. a verdict. The writ of trial was in court to prove the This was a sitting for the allowance of the bank-plea, verdict, &c. He then submitted that the debtor rupt's certificate. It appeared that the bankrupt had had wilfully contracted that part of the judgment debt already been a bankrupt twice previously-once in the which consisted of the costs, without having reasonyear 1835, and the second time in the year 1840. No able prospect of being able to pay it, within the dividend had been paid under either of those bank-meaning of the first section of the Act in question. ruptcies, and the fiat, in the present instance, had been issued upon the bankrupt's own petition. the present case it is not only uncertain at what more likely to be true, because it entered into a par- Judgment for the defendant on the second and fifth pleas, and for the plaintiff on the others. Bankrupt and Insolvent Courts. COMMISSIONERS' COURTS. Monday, March 30. Where a trader is summoned by a creditor under 5 & 6 Goldsmith, a trader, had been summoned by a creditor under an affidavit of debt filed in accordance with sec. 11 of the 5 & 6 Vict. c. 122, and had made a deposition upon oath in the form prescribed by the statute, that he verily believed he had a good defence to the whole of the sum demanded. Application was now made by his attorney for the costs and charges of his attendance, which, by the 18th section of the statute, the Court in its discretion is empowered to grant. It was submitted that the other commissioners had laid it down as a general rule that where, as in the present case, a party was prepared to swear that he believed he owed no legal debt to the party summoning him, he was entitled to have his costs. On the other side it was urged that both the demandant and the trader made their depositions upon oath, and that the affidavit of the demandant was Sturgeon, for the bankrupt, was not heard on this Mr. Commissioner FANE.-After the decisions that BRISTOL DISTRICT BANKRUPTCY COURT. Small Debts Act. His HONOUR observed, that he doubted whether the statute applied to the costs, but only to the contracting of the original debt. Wilkes contended that this case was analogous to the case of an insolvent applying under 7 & 8 Vict. c. 96, who, on being proved to have been guilty of a vexatious defence, was liable to have his petition dismissed, for having incurred a debt (for costs) without any prospect of being able to pay it, under the 24th section of the Act; and that the words of that section, so far as they applied to this point, and the 1st section of 8 & 9 Vict. c. 127, were nearly similar, and, as he submitted, quite capable of the same construction. His HONOUR considered the section referred to did apply to the costs (which formed part of the judgment debt), and that the debtor in this case had wilfully contracted the debt for costs without reasonable prospect of being able to pay it within the meaning of the 1st section of the Act; and, observing that it was a gross case, ordered him to be committed for the full term of forty days. The debtor was required to remain in court whilst the necessary warrant was made out, when he was at once conveyed to prison. [We would draw the attention of practitioners to this case, and suggest caution in recommending debtors to plead to actions when there is no real defence.] CENTRAL CRIMINAL COURT. Monday, Dec. 15, 1845. REG. v. BULL and SCHMIDT. Where two persons were icdicted for making and engraving a plate for the purposes of forgery, and it was proved that one of them gave the order for the manufacture of the plate to an innocent agent, who never saw the other until it was completed-it was held that they were both correctly charged as principals. The prisoners were indicted under the 1 Wm. 4, c. 66, s. 19, for making and engraving a portion of a plate, &c. A correspondence was given in evidence between Bull, who resided in London, and Schmidt, who was upon the Continent, from which it appeared that they were jointly engaged in planning the forgery. The order for the plate was, however, given by Bull to an innocent agent before Schmidt came to England. On the arrival of the latter, he was taken by Bull to the house of the manufacturer, and the plate, in the condition in which it was when the indictment was framed, was given into their hands, and they were shortly afterwards taken into custody. Ballantine, for the prisoner Schmidt, submitted that as both the defendants were indicted as principals, the evidence did not support the charge. It went to shew that Schmidt was an accessory before the fact, for until the time when the plate was delivered into their hands in as complet e a state as it ever was, he was never brought in contact either with it or the maker. TINDAL, C.J.-Are not the letters sufficient for that purpose? Ballantine contended that until something was done in consequence of the letters they only shewed an accessorial act. All the instructions for the plate were given by Bull. It was the making or engraving A debtor who vexatiously defends an action, whereby that constituted the gist of the charge, and to make the costs are increased, and who, at the time of giv-a party a principal in any crime he must be near ing instructions to his attorney to plead, has no rea- enough to render some active assistance in its com. sonble prospect of being able to pay the costs incurred mission. How could it be said that Schmidt could by the creditor, is, after judgment obtained, and on be thus assisting, when in fact he was upon the Conbeing summoned under 8 & 9 Vict. cap. 127, liable tinent? to be committed under the 1st section of that Act, ALDERSON, B.-How does he differ in this respect for having wilfully contracted that part of the judg- from Bull? Neither of them made or engraved the ment debt which consisted of the costs, without rea- | plate. Ballantine contended that as Bull had acted immediately in the matter, he was to be considered as the maker. The innocent agent was a mere machine set in motion by Bull. Every act done by the former was virtually the act of the latter. It was precisely the same as though Bull had made and engraved the plate, and if he had done so, Sehmidt, being absent, could be only an accessory. There was no difference between the principal case and one where a person counsels another to commit a felony without taking any active part in it himself. The learned counsel cited R. v. Davis and Hall (R. & R. 113). Clarkson (with whom were Bodkin and Rew) for the prosecution, cited R. v. Mascau, 9 C. & P. 676, and was stopped by the Court. TINDAL, C. J.-It is contended that as Schmidt was on the Continent at the time when the order was given and the plate was made, he should not be indicted as a principal. That reasoning would be good if the actual maker had been a guilty party, because he would stand in a different position to those who had counselled him to the commission of the crime. But it altogether fails where the immediate agent is an innocent one. Then those who have plotted and arranged that he should do the particular act are themselves principals. Suppose the prisoners had been both abroad, and that having planned the forgery, one of them had given the order for the plate by letter; could it be doubted that they would be indictable as principals, and can it make any real difference that one of them is in this country. It seems to me, then, that the circumstance of the immediate agent in this forgery being an innocent person renders the rule of law as to principal and accessory inapplicable. ALDERSON, B.-If a person does an act with a guilty intent, he is not the agent of any one. If he does it innocently, he is the agent of some person or persons; and if two have agreed to employ him, he is the agent of both. In this case, therefore, it is a question for the jury, whether the prisoners were jointly acting in the procuring this plate to be made. If they were, then the engraver acts on behalf of both. It makes no difference whether they were in England or elsewhere. When they have once agreed to do the thing, the act of one is the act of all, although the rest be absent at the time. Irish Reports. COURT OF QUEEN'S BENCH. Thursday, Jan. 15. Habeas corpus-Invalidity of committal vitiates a good soner. Geraghty, wardmaster of the workhouse of the South "Given under our hands and seals, at the public "J. MAGEE (L. S.) " Upon the 6th of December the prisoner was brought J. Chambers moved that the prisoner be now dis- CRAMPTON, J.-The statute does not say that the party shall be committed in open court, but that such person shall, on conviction in open court, be committed. error to say that the Court must either discharge or PERRIN, J.-What do you say to the want of certainty in that part of the committal and conviction which recites that the prisoner deserted his wife" on or about the 7th of April?" and could the keeper of the Bridewell put the prisoner to hard labour upon this committal? Brewster.-I think he could with perfect safety. PERRIN, J.-Suppose the statute gives a form of committal, how would it do to pursue that form, just leaving out these words? Fitzgibbon, Q.C. on behalf of the guardians of the poor for the South Dublin Union.-If the warrant had even stopped after the recital of the conviction, and the direction to the keeper of the gaol" to receive the body of Joseph Nugent," it would have been sufficient. CRAMPTON, J.-It might if it then said, "to undergo the sentence aforesaid." If the warrant had varied from the conviction by directing the gaoler to keep the prisoner for two months instead of three would it have been sufficient? Fitzgibbon.-That portion might be rejected as surplusage. Rex v. Taylor governs this case. Burn's Just. p. 967. CRAMPTON, J.-Rex v. Taylor does not go to the same extent at all; it decides that the Court will not discharge a prisoner merely on the ground of the committal being defective, until they have the conviction also before them. BURTON, J.-The decision in Taylor's case is confined to cases arising under the particular statute. Chambers.-There is no stop in the sentence. Napier, Q.C. in reply.-The invalidity of the comThis is a highly penal statute, and in favour of mittal cannot be cured by the validity of the convicliberty; it ought to be construed strictly. tion. It is most important that the committal shall Thirdly. The committal is bad. It does not autho-be right, as the conviction is not ever sent to the rise the keeper of the Bridewell to keep the prisoner gaoler; he has nothing but the committal to go by. Quære, does a man, though resident in England, apart to hard labour, which is the punishment prescribed It might as well be said that if sentence of transportafrom his wife, from a period prior to the passing by the statute; and where an offence is created by a tion was passed upon a prisoner, and the mandatory of the Irish Poor-law Act, notwithstanding be- statute, and a punishment is prescribed, a committal part of the commitment directed the gaoler to keep come liable to the penalties imposed by the 59th sec-for a greater or a less punishment is void, and the him in custody for two years, such a detention would tion, as soon as his wife becomes chargeable upon the prisoner must be discharged; for this Court will not be legal. This statute (1 & 2 Vict. c. 56) is a highly rates of any Poor-law union in Ireland? give judgment upon the conviction of an inferior penal one, and should be most strictly construed, as Joseph Newton, alias Nugent, who had been for Court, though that conviction may be a good one. there is no appeal given by it from the decisions of the upwards of twenty years preceding living in Liver- (Vyse v. Baker, Carth. 6.) The magistrates are bound justices. pool, apart from his wife, was there arrested and by the committal. Where the committal is bad, the brought to Dublin, in pursuance of a warrant issued conviction is rendered void. (Wickes v. Clutterbuck, by two justices of the Castle Division of Police, and 10 B. Moore, 84, per Best, C. J.; Rogers v. Jones, by them convicted, under the 59th section of 1 & 2 1 Ry. & M. 135.) Vict. c. 56, of having deserted his wife, so that she PERRIN, J.-Where, under the statute, a magisbecame chargeable upon the rates of the South Dub. trate commits a man for three months, but omits the lin Poor-law Union, and was committed to the Rich-direction to keep him to hard labour, is he liable in an mond Bridewell upon the 1st of December last. The action for false imprisonment ?-that is the question commitment, which recites as much of the conviction in this case. and preliminary proceedings as is necessary to render the case intelligible, was in the following terms:"Police District of Dublin Metropolis, Castle Division of Police, and County of the City of Dublin, to "To William Browne, one of the constables of the wit. CRAMPTON, J.-If the sentence is not authorised by the statute, whether it is in excess or diminution of punishment, it is a void sentence; but where the sentence is right, and the conviction is regularly drawn up, is the sentence made void by a defective committal? Chambers.-It is. If a man were convicted of murder, but was only committed to gaol for three months, could the sheriff execute the sentence of the law upon said police district, and his assistants, and to the (a) The 59th sec. of 1 & 2 Vict. c. 56, provides "That if any person shall desert and leave his wife, &c. so that such wife, &c. shall become destitute and be relieved in the Workhouse of any Union, every such person shall, on conviction thereof before any justice of the peace, at petty sessions, in open correction, there to be kept to hard labour for any term not court, &c. be committed to the common gaol or house of exceeding three months." The learned counsel cited the judgment of Best, C.J. in Taylor's case; and being about to address himself to the other objections, was stopped by the Court. BURTON, J.-The Court is of opinion that your argument upon this part of the case must prevail; and that the prisoner, not being in legal custody, must be discharged. CRAMPTON, J.-It is the warrant that the keeper of a gaol is to look to as to his authority, and not the conviction. PERRIN, J.-It is not to be expected that the keeper of the gaol is to look into the Act of Parlia ment, and then put his construction upon the warrant; he is not to be expected to spell out his authority in that way. The prisoner was discharged. Brewster applied that he should be put upon terms not to bring any action, but The COURT declined to interfere. Tuesday, Jan. 27. CRIMINAL PROSECUTION. REG. at the Prosecution of EDWARD ELLIOT, one of the Attorneys, v. JOHN MAHER, one of the Attorneys, and OTHERS. tained last Term (see 6 Law T. p. 132), at the suit of In this case a conditional order having been obthe prosecutor, an attorney practising in the county of |